Petition for Writ of Certiorari — Delano Marco Medina, Petitioner v. Colorado

la

APPENDIX

Table of Contents

Appendix A:

Medina u. People (Colorado Supreme Court,

Sept. 11, 2023)

2a

Appendix B:

People u. Medina (Colorado Court of Appeals,

Sept. 23, 2021)

24a

Appendix C:

People v. Medina (Colorado District Court,

May 22, 2019)

52a

2a

APPENDIX A

Supreme Court of Colorado

Delano Marco MEDINA, Petitioner,

v.

The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 21SC765

September 11, 2023

Certiorari to the Colorado Court of Appeals, Court

of Appeals Case No. 19CA1196

Attorneys for Petitioner: Schelhaas Law LLC,

Krista A. Schelhaas, Littleton, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney

General, Denver, Colorado

En Banc

CHIEF JUSTICE BOATRIGHT delivered the

Opinion of the Court, in which JUSTICE MARQUEZ, JUSTICE HOOD, JUSTICE GABRIEL,

JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

CHIEF JUSTICE BOATRIGHT delivered the

Opinion of the Court.

¶1 In North Carolina u. Alford, 400 U.S. 25, 39, 91

S.Ct. 160, 27 L.Ed.2d 162 (1970), the United States

Supreme Court upheld a defendant's guilty plea

even though the defendant maintained his innocence

while entering the plea. In so doing, the Court noted

that such a scenario (now commonly known as an

Alford plea) is functionally identical to a no-contest

3a

plea when the defendant "intelligently concludes

that his interests require entry of a guilty plea and

the record before the judge contains strong evidence

of actual guilt." Id. at 37, 91 S.Ct. 160.

¶2 Similarly, Delano Marco Medina pleaded guilty

to felony menacing even though he maintained his

innocence of that charge. He did so in exchange for

the dismissal of several other criminal cases. The

trial court found that Medina's plea was voluntary,

knowing, and intelligent. But because Medina

agreed to waive the establishment of a factual basis

for menacing under Crim. P. 11(b)(6), the trial court

did not make a finding as to whether strong evidence

of Medina's actual guilt existed. Medina later moved

to withdraw his plea as violative of due process, arguing that a defendant cannot waive proof of a factual basis when entering an Alford plea. The postconviction court denied his motion, and a division of

the court of appeals affirmed.

¶3 We must now determine whether an Alford

plea requires that the trial court make a finding of

strong evidence of actual guilt to pass constitutional

muster. We conclude that there is no such requirement. Rather, we hold that a defendant may enter

an Alford plea while nonetheless waiving the establishment of a factual basis for the charge under

Crim. P. 11(b)(6), provided that the plea is voluntary, knowing, and intelligent. We therefore affirm

the division's judgment, albeit on slightly different

grounds.

I. Facts and Procedural History

¶4 Medina's wife reported that Medina had

threatened her and held a knife to her,throat during

4a

an argument. The People charged Medina in Lake

County with felony menacing (committed with the

use of a real or simulated weapon), a class 5 felony.

At the time, Medina faced prosecution in five other

Lake County cases, as well as one Boulder County

case. The court set a $10,000 cash or surety bond in

the menacing case; bond amounts were also set in

the other cases.

¶5 Medina later agreed to plead guilty to felony

menacing in this case. In exchange, the People

agreed to dismiss all charges in the five other Lake

County cases.' The parties further agreed that after

Medina received his Boulder County sentence, he

would receive a consecutive one-year sentence for

menacing. Medina signed a copy of the guilty plea,

which stated both: "I acknowledge that there is factual basis for my guilty plea" and "I waive establishment of a factual basis for the charge."

¶6 Before the plea colloquy, Medina's attorney

("plea counsel") told the trial court that Medina

"steadfastly maintains that the menacing would not

be a provable case." Plea counsel added, however,

that Medina "does not have a defense" to "other cases, in particular a bond violation." Accordingly, plea

1 The People agreed to dismiss Lake County cases 13CR53,

13CR63, 13T75, 13M130, and 13M131. While the record doesn't

reflect the charges in these cases, we take judicial notice that

they included ten felony counts (including class 4 felony identity theft, class 5 felony forgery, and four counts of class 6 felony

violation of bond conditions). See People v. Sa'ra, 117 P.3d 51,

56 (Colo. App. 2004) ("A court may take judicial notice of the

contents of court records in a related proceeding."). The cases

also included a habitual criminal sentence enhancer, eleven

misdemeanor counts, a misdemeanor traffic offense, and a traffic infraction.

5a

counsel said that Medina was choosing to plead

guilty to felony menacing, "even though in his heart

of hearts he does not believe he's guilty of that," so

Medina could "take advantage of the plea bargain."

And "to that extent," plea counsel stated, Medina

"would be waiving proof of a factual basis."

¶7 The trial court acknowledged that because Medina maintained his innocence, he was entering an

Alford plea. The court asked Medina if he had read

the plea agreement, understood everything he read,

and signed it. Medina said that he had. The court

warned Medina that he would be "giving up some

serious rights" by pleading guilty, which the court

then described in turn before asking if Medina understood that he would be waiving each right. Medina said that he understood. The trial court explained

the elements of felony menacing and asked whether

Medina understood that if he went to trial, the People would need to prove each element beyond a reasonable doubt. Medina said that he understood. The

trial court asked if Medina understood that "[o]nce

you plead guilty, this is a final decision. You cannot

come back at another time, change your mind, plead

not guilty and have a trial." Again, Medina said that

he understood. At that point, the trial court asked

Medina how he chose to plead, and Medina pleaded

guilty.

¶8 Accordingly, the trial court found that Medina's plea was "freely, voluntarily, knowingly and intelligently given." The court also found that Medina

had "waived the factual basis" for the menacing

charge and understood that he was waiving his

rights by pleading guilty. The trial court therefore

accepted Medina's guilty plea and scheduled a sen-

6a

tencing hearing. In accordance with the plea agreement, the court then dismissed the five other Lake

County cases. With the other cases dismissed, Medina posted the $10,000 surety bond in this case and

was released from custody.

¶9 Medina failed to appear at the sentencing

hearing, and the court issued a warrant for his arrest. Almost a year later, Medina appeared in custody once again, represented by a new attorney ("sentencing counsel"). The People asked the court to enter the one-year sentence for felony menacing that

Medina had agreed to previously. Sentencing counsel, however, sought to withdraw the plea, arguing

that Medina had believed he could withdraw an Alford plea if he discovered new evidence and that new

evidence had since come to light.2 The trial court denied Medina's request to withdraw his plea, stating

that "there's no evidence before me that [Medina's]

plea was not freely, voluntarily, knowingly and intelligently done." And so, the court imposed the oneyear sentence that Medina had stipulated to previously, and Medina was given 165 days of presentence confinement credit for a total sentence of 200

days of imprisonment, plus two years of mandatory

parole.

¶10 Almost three years later, Medina filed a motion for postconviction relief. As relevant here, Medina argued that there was no factual basis for the

plea, rendering his conviction invalid under Alford.

2 Sentencing counsel made an offer of proof that in a jail call

with Medina, the victim stated that she had not seen Medina

holding a knife during their argument. Medina testified at the

postconviction hearing, however, that the call itself took place

before he pleaded guilty.

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At a hearing, plea counsel testified that Medina had

"waived the factual basis" for menacing because (1)

"he may have been guilty of some of the other charges" and "wanted to take the plea agreement," and (2)

he would be able to post bond once the other Lake

County cases were dismissed. Medina also testified

and acknowledged that he "was guilty of the other

Lake County cases, but he maintained that he was

innocent of menacing. Under cross-examination,

Medina conceded that pleading guilty to menacing

"was my choice" and that "[n]obody forced me."

¶11 The postconviction court denied Medina's motion. It found that the record "reflect[ed] that [Medina] waived a factual basis for the purpose of availing

himself of the plea bargain in the case"; specifically,

Medina did so because he wanted to avoid prosecution in the other Lake County cases and post bond.

The court found it "[p]articularly persuasive" that

Medina had pleaded guilty knowing he would obtain

the benefits of an "incredibly favorable" plea bargain,

including the dismissal of five other cases and a

stipulated one-year sentence. Moreover, the court

found that the record provided sufficient grounds "to

determine that there was a strong factual basis for

the offense." Accordingly, the court ruled that Medina's plea was knowing and voluntary; it also ruled

that "[t]here was a factual basis for the plea sufficient to meet the Alford requirements."

¶12 Medina appealed, arguing that under Alford,

his plea was invalid because the trial court allowed

him to waive proof of a factual basis.3 People v. Me3 Medina also argued that the postconviction court erred by in-

dependently assessing whether there was a factual basis for

the plea and by concluding that there was. People v. Medina,

8a

diva, 2021 COA 124, ¶ 14, 501 P.3d 834, 837. A division of the court of appeals first noted that Crim. P.

11(b)(6) expressly permits a defendant to waive proof

of a factual basis when the defendant enters a plea

agreement. Id. at ¶ 18, 501 P.3d at 838. Turning to

Alford, the division identified "two components to a

plea when a defendant protests his or her innocence:

(1) that the defendant's interests show he or she

should enter the plea; and (2) that there is strong evidence of actual guilt" despite that protestation of

innocence. Id. at ¶ 23, 501 P.3d at 839. The division

determined, however, that Alford didn't resolve

whether the defendant may waive a finding that

there is strong evidence of actual guilt. Id. at ¶ 24,

501 P.3d at 839. Reviewing case law, the division determined that federal courts disagree as to whether

a strong factual basis is an independent constitutional requirement for Alford pleas. Id. at ¶ 29, 501

P.3d at 839-40. The division found similar discord

among state courts; some hold that a strong factual

basis is constitutionally required under Alford, while

others hold that a strong factual basis is required by

state procedural rules. Id. at VII 34-36, 501 P.3d at

840-41.

¶13 Faced with these competing views, the division stated that Colorado "has treated an Alford plea

like any other guilty plea" and that Crim. P.

11(b)(6)—which does not distinguish between Alford

pleas and other guilty pleas—is consistent with that

treatment. Id. at ¶ 41, 501 P.3d at 841. Accordingly,

the division held that although "the strong factual

basis from Alford is required as part of constitution2021 COA 124, ¶ 14, 501 P.3d 834, 837. The division didn't

reach those arguments, id., and they aren't before us now.

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al due process," it is not an independent right from

the broader constitutional imperative that a defendant must "knowingly, voluntarily, and intelligently

enter[ ] a plea agreement." Id. at ¶ 48, 501 P.3d at

843. And because Crim. P. 11 allows defendants to

waive the factual-basis finding, the division concluded that such a waiver—if validly made—doesn't

"render[ ] an Alford plea involuntary as a matter of

law." Id. Applying those principles, the division determined that the postconviction court did not err by

ruling that Medina waived a factual-basis finding

and voluntarily, knowingly, and intelligently pleaded

guilty. Id. at ¶ 65, 501 P.3d at 846.

10.4 Medina petitioned for certiorari review, and

we granted his petition.4

II. Standard of Review

1115 "The constitutional validity of a guilty plea is

a question of law that we review de novo." Brooks u.

People, 2019 CO 75M, ¶ 6, 448 P.3d 310, 312. We defer to the trial court's factual findings, however, if

they are supported by the record. Id. Likewise, in

Crim. P. 35(c) proceedings, "we review the lower

court's legal conclusions de novo but defer to the

postconviction court's factual findings if they are

supported by the record." People u. Corson,, 2016 CO

33, ¶ 25, 379 P.3d 288, 293.

4 We granted certiorari to review the following issue:

Whether a guilty plea entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162

(1970), but without strong evidence of guilt, violates due

process.

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III. Analysis

¶16 We begin by discussing the general requirements for a valid guilty plea. We then turn to Alford,

which upheld the validity of guilty pleas accompanied by a protestation of innocence when the defendant "intelligently concludes that his interests require

entry of a guilty plea and the record before the judge

contains strong evidence of actual guilt." 400 U.S. at

37, 91 S.Ct. 160. After surveying decisions that have

interpreted this language, we determine that a factual-basis finding is not a constitutional prerequisite

for an Alford plea, but rather a procedural tool that

courts may use to evaluate whether the plea is voluntary, knowing, and intelligent (and therefore comports with due process). Thus, we hold that a defendant may enter an Alford plea while nonetheless

waiving the establishment of a factual basis for the

charge under Crim. P. 11(b)(6), provided that the

plea is voluntary, knowing, and intelligent. Applying

these principles, we affirm, albeit on slightly different grounds.

A. Guilty Pleas

1E17 Because a guilty plea involves a defendant's

waiver of important constitutional rights, it "is valid

only if done voluntarily, knowingly, and intelligently, 'with sufficient awareness of the relevant circumstances and likely consequences."' Bradshaw v.

Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162

L.Ed.2d 143 (2005) (quoting Brady v. United States,

397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747

(1970)). A plea is invalid if "a defendant 'does not

understand the nature of the constitutional protections he is waiving,' or las such an incomplete un-

11a

derstanding of the charge that his plea cannot stand

as an intelligent admission of guilt."' People v. Dist.

Ct., 868 P.2d 400, 403 (Colo. 1994) (citation omitted)

(quoting Lacy v. People, 775 P.2d 1, 4 (Colo. 1989)).

¶18 However, "[n]o formalistic litany is required

before a court may accept a plea of guilty." Id. "Nor

does due process generally require that the record

demonstrate an adequate factual basis for the plea."

Lacy, 775 P.2d at 5. Instead, the record "must simply

show that the defendant entered his guilty plea voluntarily and understandingly." Id.

1119 Alongside these constitutional requirements,

we have adopted rules governing the procedures by

which a defendant may plead guilty. Crim. P. 11(b).

Compliance with Crim. P. 11 "normally will satisfy

constitutional due process concerns." Dist. Ct., 868

P.2d at 404. When a defendant pleads guilty, the

court "shall not accept" the plea "without first determining that the defendant has been advised of all

the rights set forth in Rule 5(a)(2)"; namely, the privilege against self-incrimination, the right to counsel,

the right to request appointed counsel, the right to

bail, the right to a jury trial, and (under certain circumstances) the right to demand a preliminary hearing. Crim. P. 11(b); see also Crim. P. 5(a)(2). Typically, the court must also determine "[t]hat there is a

factual basis for the plea." Crim. P. 11(b)(6). However, the rule provides that a defendant may "waive

the establishment of a factual basis for the particular charge to which he pleads" if the plea is entered

as the result of a plea agreement and the court confirms that the defendant understands the basis for

the agreement. Id.

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¶20 With these standards in mind, we turn to the

type of guilty plea at issue here: a plea accompanied

by a protestation of innocence, also called an Alford

plea.

B. Alford Pleas

¶21 In Alford, the United States Supreme Court

confronted whether the Constitution permits a defendant to plead guilty even when the defendant

maintains factual innocence. 400 U.S. at 34, 91 S.Ct.

160. The Court answered yes. Id. at 37, 91 S.Ct. 160.

¶22 Alford was charged with first degree murder.

Id. at 26, 91 S.Ct. 160. At the time, North Carolina

law provided that first degree murder must be punished with the death penalty unless the jury recommended life imprisonment. Id. at 27 n.1, 91 S.Ct.

160. And while Alford insisted that he was innocent,

several witnesses incriminated him. Id. at 27, 91

S.Ct. 160. So, Alford decided to plead guilty to second degree murder, which was not a death-penaltyeligible crime. Id. at 27-28 & n.1, 91 S.Ct. 160. Before accepting his plea, the trial court heard testimony suggesting that Alford had committed the

murder. Id. at 28, 91 S.Ct. 160. Alford also testified,

saying that while he maintained his innocence, he

wished to plead guilty to avoid the death penalty. Id.

The court accepted Alford's plea and sentenced him

to prison. Id. at 29, 91 S.Ct. 160.

¶23 Alford later challenged his conviction, arguing

(in part) that his plea was invalid because he maintained his innocence. See id. at 31, 91 S.Ct. 160. The

Supreme Court stated that the standard for assessing a guilty plea's validity "was and remains

whether the plea represents a voluntary and intelli-

13a

gent choice among the alternative courses of action

open to the defendant." Id. The Court acknowledged

that ordinarily, a conviction on a guilty plea "is justified by the defendant's admission that he committed

the crime charged against him and his consent that

judgment be entered without a trial of any kind." Id.

at 32, 91 S.Ct. 160.

¶24 Nevertheless, the Court recognized that a defendant who maintains innocence "might reasonably

conclude a jury would be convinced of his guilt and

that he would fare better in the sentence by pleading

guilty." Id. at 33, 91 S.Ct. 160 (quoting McCoy v.

United States, 363 F.2d 306, 308 (D.C. Cir. 1966)).

Accordingly, "[r]easons other than the fact that he is

guilty may induce a defendant to so plead, ... [and]

[h]e must be permitted to judge for himself in this

respect." Id. (alterations in original) (quoting State v.

Kaufman, 51 Iowa 578, 2 N.W. 275, 276 (1879)).

¶25 The Court noted that it had already allowed

lower courts to impose a prison sentence upon a plea

of nolo contendere—even though a defendant doesn't

expressly admit guilt in such a plea.5 Id. at 35-36,

91 S.Ct. 160 (citing Hudson v. United States, 272

U.S. 451, 457, 47 S.Ct. 127, 71 L.Ed. 347 (1926)).

"Implicit" in that logic, the Court determined, "is a

recognition that the Constitution does not bar imposition of a prison sentence upon an accused who is

5 A nolo contendere plea, also called a no-contest plea, "literally

means 'I do not wish to contend."' People v. Darlington, 105

P.3d 230, 233 (Colo. 2005) (quoting Nolo Contendere, Black's

Law Dictionary (8th ed. 2004)). As the name implies, a plea of

nolo contendere permits a defendant to simply not contest guilt

or innocence; still, it is "fully equivalent" to a guilty plea for

purposes of the criminal case. Id.

14a

unwilling expressly to admit his guilt but who, faced

with grim alternatives, is willing to waive his trial

and accept the sentence." Id. at 36, 91 S.Ct. 160. So

"while most pleas of guilty consist of both a waiver of

trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty." Id. at 37, 91 S.Ct. 160.

¶26 Returning to Alford's case, the Court stated

that it couldn't "perceive any material difference" between a nolo contendere plea and a plea accompanied by a protestation of innocence "when, as in the

instant case, a defendant intelligently concludes that

his interests require entry of a guilty plea and the

record before the judge contains strong evidence of

actual guilt." Id. (emphasis added). In so doing, the

Court noted that some courts "properly caution that

pleas coupled with claims of innocence should not be

accepted unless there is a factual basis for the plea."

Id. at 38 n.10, 91 S.Ct. 160 (collecting cases). But the

Court reasoned that the validity of Alford's plea was

clear when "viewed in light of the evidence against

him, which substantially negated his claim of innocence and which further provided a means by which

the judge could test whether the plea was being intelligently entered." Id. at 37-38, 91 S.Ct. 160. Thus,

the Court concluded that Alford's choice to plead

guilty while maintaining his innocence was constitutionally permissible. Id. at 38-39, 91 S.Ct. 160.

¶27 Colorado permits defendants to make the

same choice. See People v. Birdsong, 958 P.2d 1124,

1127 (Colo. 1998). At bottom, though, "[a]n Alford

plea is a guilty plea." Id.; see also United States v.

Tunning, 69 F.3d 107, 111 (6th Cir. 1995) ("An Alford-type guilty plea is a guilty plea in all material

15a

respects."). So, in other contexts, we have declined to

differentiate an Alford plea from any other guilty

plea. People v. Schneider, 25 P.3d 755, 758 (Colo.

2001) (holding that "an Alford plea is no different

from a guilty plea" when analyzing whether a defendant may withdraw the plea); Birdsong, 958 P.2d

at 1127 (holding that the trial court's "obligations to

advise the defendant were no greater" for an Alford

plea "than with any other guilty plea"). Nor do our

procedural rules differentiate an Alford plea from

any other guilty plea. See Crim. P. 11(a) (providing

that a defendant may plead guilty, not guilty, not

guilty by reason of insanity, or nolo contendere).

¶28 Left unresolved in our decisions, however, is

whether an Alford plea must be supported by a finding that there is strong evidence of actual guilt, or

whether a defendant may instead waive that finding.

See Lacy, 775 P.2d at 5 & n.7 (holding that due process generally does not require that the record

demonstrate an adequate factual basis for a plea but

declining to address whether the same is true for Alford pleas); In re Cardwell, 50 P.3d 897, 905 n.8 (Colo. 2002) (suggesting in dicta that "the trial judge

should inquire into factual guilt" when a defendant

protests innocence). We turn to that issue now.

C. Strong Evidence of Actual Guilt

¶29 Medina argues that the "strong evidence of

actual guilt" discussed in Alford is a nonwaivable,

constitutional prerequisite for all Alford pleas,

meaning that an Alford plea violates due process unless it is supported by a factual-basis finding. In response, the People argue that the requirement for

courts to make a factual-basis finding is a product of

16a

procedural rules, not the Constitution, and that Colorado's Crim. P. 11 allows defendants to waive that

finding. Alternatively, the People argue that even if

a factual-basis finding is a constitutional requirement for Alford pleas, defendants can waive that requirement, just as they waive numerous constitutional rights by pleading guilty.

¶30 Other appellate courts are split on this issue.

Compare Higgason v. Clark, 984 F.2d 203, 208 (7th

Cir. 1993) (holding that strong evidence of guilt is

not a constitutional prerequisite for an Alford plea),

with Willett v. Georgia, 608 F.2d 538, 540 (5th Cir.

1979) (holding that a factual basis must support an

Alford plea).

¶31 Specifically, the Seventh Circuit holds that

strong evidence of actual guilt is not constitutionally

required, even in the context of an Alford plea. Higgason, 984 F.2d at 208. Instead, the standard for assessing whether an Alford plea is constitutional remains the same as with any other guilty plea: The

plea must be voluntary, knowing, and intelligent. Id.

(quoting Alford, 400 U.S. at 31, 91 S.Ct. 160). According to the Seventh Circuit, "[p]utting a factual

basis for the plea on the record has become familiar

as a result of statutes and rules, not as a result of

constitutional compulsion." Id. The Higgason court

recognized that Fed. R. Crim. P. 11 requires federal

courts to make a factual-basis finding before accepting any guilty plea. Id. But Alford "does not imply

that the factual-basis requirement of Fed. R. Crim.

P. [11] and its state law counterparts comes from the

Constitution." Id. at 207. Rather, "Alford tells us

that strong evidence on the record can show that a

plea is voluntary; it does not hold that only strong

17a

evidence on the record permits a finding of voluntariness." Id.

¶32 The Sixth Circuit has similarly concluded

that the factual-basis requirement "is not a requirement of the Constitution, but rather a requirement

created by rules and statutes." Tunning, 69 F.3d at

111. According to that Circuit, Alford held that a

court may accept a guilty plea accompanied by a protestation of innocence "so long as the defendant voluntarily, knowingly, and understandingly consents

to be sentenced on a charge." Roddy v. Black, 516

F.2d 1380, 1385 (6th Cir. 1975). And "[t]his being the

rule, there is no constitutional requirement that a

trial judge inquire into the factual basis of a plea."

Id. That requirement instead stems from Fed. R.

Crim. P. 11, the "precise terms" of which "are not

constitutionally applicable to the state courts." Id. at

1383, 1385; see also Fed. R. Crim. P. 11(b)(3) ("Before

entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.").

¶33 In contrast, the Fifth Circuit has held that

courts are constitutionally obligated to inquire into

the factual basis of an Alford plea before accepting

one. Willett, 608 F.2d at 540. In so doing, the Fifth

Circuit focused on a footnote in Alford, which said

that various courts "properly caution that pleas coupled with claims of innocence should not be accepted

unless there is a factual basis for the plea." Id. (quoting Alford, 400 U.S. at 38 n.10, 91 S.Ct. 160). Extrapolating from that language, the Fifth Circuit

held that "a judicial finding of some factual basis for

[the] defendant's guilt is an essential part of the constitutionally-required finding of a voluntary and intelligent decision to plead guilty" in the context of an

18a

Alford plea. Id. Other federal circuits have similarly

concluded that evidence of guilt must support an Alford plea. See United States ex rel. Dunn v. Casscles,

494 F.2d 397, 399 (2d Cir. 1974); United States v.

Mackins, 218 F.3d 263, 268 (3d Cir. 2000); United

States v. Mastrapa, 509 F.3d 652, 659 (4th Cir.

2007); White Hawk v. Solem, 693 F.2d 825, 829 (8th

Cir. 1982); United States v. Vidal, 561 F.3d 1113,

1119 (10th Cir. 2009); United States v. Lefever, 343

F. App'x 595, 597 (11th Cir. 2009). Even these

courts, however, disagree as to whether "strong" evidence is necessary, as opposed to less stringent

proof. Compare White Hawk, 693 F.2d at 829 (requiring a "strong factual basis"), with United States v.

Morrow, 914 F.2d 608, 612 (4th Cir. 1990) ("[A]ny

Rule 11 proceeding requires that a factual basis for

the plea be established and we are unwilling to place

more requirements in the context of an Alford

plea.").

¶34 State courts are similarly split. Some have

held that a factual-basis finding is constitutionally

required for Alford pleas. See, e.g., Sparrow v. State,

102 Idaho 60, 625 P.2d 414, 415-16 (Idaho 1981);

State v. Smith, 61 Haw. 522, 606 P.2d 86, 88-89

(Haw. 1980); State v. Goulette, 258 N.W.2d 758, 761

(Minn. 1977). But others treat the issue as a matter

of state procedural law, not a federal constitutional

requirement. See, e.g., People v. Barker, 83 I11.2d

319, 47 Ill.Dec. 399, 415 N.E.2d 404, 410 (Ill. 1980)

(relying on state procedural rule modeled after Fed.

R. Crim. P. 11); Robinson v. State, 291 A.2d 279,

280-81 (Del. 1972) (same).

¶35 Among these competing views, we find the

Seventh Circuit's approach most persuasive. Alt-

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hough a finding of strong evidence of actual guilt can

show that an Alford plea comports with due process,

it is not a constitutional prerequisite for every such

plea. Higgason, 984 F.2d at 208. Instead, "[t]he Constitution's standard 'was and remains whether the

plea represents a voluntary and intelligent choice."'

Id. (quoting Alford, 400 U.S. at 31, 91 S.Ct. 160).

¶36 While the Supreme Court noted that evidence

of Alford's guilt "provided a means by which the

judge could test whether the plea was being intelligently entered," Alford, 400 U.S. at 38, 91 S.Ct. 160,

the Court didn't state that strong evidence of guilt

alone can provide those means, Higgason, 984 F.2d

at 207 ("`If A then B' does not imply 'if not-A then

not-B."). To the contrary, inquiring into factual guilt

is simply one way that courts may assess whether an

Alford plea is voluntary, knowing, and intelligent—

not the only way.

¶37 Crim. P. 11 is designed to facilitate the constitutionally required determination that a guilty plea

is voluntary, knowing, and intelligent. People v.

Leonard, 673 P.2d 37, 39-40 (Colo. 1983). But that

doesn't mean the factual-basis finding discussed in

Crim. P. 11 is itself a constitutional requirement; instead, the finding is procedural in nature.6 See Higgason, 984 F.2d at 207; Roddy, 516 F.2d at 1385

("The requirement that a federal trial judge inquire

6 To the extent the division below concluded that a strong fac-

tual basis "is required as part of constitutional due process,"

Medina, ¶ 48, 501 P.3d at 843, we disapprove of that portion of

its opinion. While a factual-basis finding may help a trial court

determine that a defendant's plea comports with due process,

that finding is not an integral component of due process itself.

Higgason, 984 F.2d at 207.

20a

into the factual basis of a plea stems from [Fed. R.

Crim. P. 11], rather than from the Constitution.").

Some jurisdictions' procedural rules, like the federal

rules, require courts to make a factual-basis finding

before accepting any guilty plea. See, e.g., Fed. R.

Crim. P. 11(b)(3); Cal. Penal Code § 1192.5(c) (West

2023) ("The court shall also cause an inquiry to be

made of the defendant to satisfy itself ... that there is

a factual basis for the plea."). But our Crim. P.

11(b)(6) expressly allows defendants to waive proof

of a factual basis if their plea is entered as the result

of a plea agreement. Accordingly, under the plain

language of Crim. P. 11(b)(6), defendants like Medina may waive proof of a factual basis, even if they

simultaneously profess their innocence.? See People

v. Fuqua, 764 P.2d 56, 59 (Colo. 1988) ("[I]f [a criminal procedure rule] is plain and unambiguous, we

apply the rule as written.").

¶38 This treatment comports with our previous

recognition that "[a]n Alford plea is a guilty plea."

Birdsong, 958 P.2d at 1127. We have long recognized

that "an Alford plea is the functional equivalent of a

guilty plea" and have declined to impose different

standards when assessing either. Schneider, 25 P.3d

at 759; see also Birdsong, 958 P.2d at 1127. And

while we have (until today) reserved ruling on

whether a factual-basis finding must support an AlIn some cases, it may be better practice for trial courts to

nonetheless make a factual-basis finding before accepting an

Alford plea. A thorough inquiry into the factual basis for a plea

can provide insight into whether the defendant's decision to

plead guilty is indeed voluntary, knowing, and intelligent; it

may also insulate the conviction from later attack by providing

record support that the plea represents a voluntary and intelligent choice. Higgason, 984 F.2d at 207-08.

7

21a

ford plea, we have nonetheless held that due process

does not "generally require that the record demonstrate an adequate factual basis" for guilty pleas.

Lacy, 775 P.2d at 5. Because we have declined to differentiate between Alford pleas and other guilty

pleas generally, we decline to do so in this context as

well.

¶39 Moreover, the determination that a guilty

plea is voluntary, knowing, and intelligent necessarily depends on the circumstances of each case. See id.

at 6. While a defendant's choice to plead guilty may

be influenced by the factual basis for the charge, it

may equally be influenced by other considerations.

For instance, by pleading guilty to menacing, Medina was able to achieve the global disposition of several other criminal cases for which he had no defense. Cf. People v. Isaacks, 133 P.3d 1190, 1191 (Colo. 2006) (discussing a defendant who was charged

with menacing but instead pleaded guilty to a conspiracy charge that "was not supported by facts" so

he could take advantage of a plea bargain); People v.

Maestas, 224 P.3d 405, 408-09 (Colo. App. 2009)

(discussing a defendant who pleaded guilty to a

charge of second degree assault as part of a plea

agreement, even though it was "undisputed that

there was no factual basis" for the charge). Like Alford, Medina "now argues in effect that the State

should not have allowed him this choice." Alford, 400

U.S. at 38-39, 91 S.Ct. 160. But that's not what the

Constitution demands. So long as the defendant's

choice to plead guilty is voluntary, knowing, and intelligent, the Constitution's mandate is met. Higgason, 984 F.2d at 208 (quoting Alford, 400 U.S. at

31, 91 S.Ct. 160).

22a

¶40 Thus, we hold that a defendant may enter an

Alford plea while nonetheless waiving the establishment of a factual basis for the charge under

Crim. P. 11(b)(6), provided that the plea is voluntary, knowing, and intelligent.

D. Application

¶41 We now turn to Medina's plea. Medina faced

prosecution in several other cases when he was

charged with menacing. So, Medina had a choice to

make. He could plead guilty to menacing in exchange for the global disposition of his other cases

(including the dismissal of numerous felony charges)

and receive a stipulated sentence of one year in the

Department of Corrections. Or he could proceed to

trial in all of his cases, despite his acknowledgment

that he "was guilty of some of those charges, and

perhaps try to negotiate piecemeal plea agreements

along the way.

¶42 Medina chose the former option. He signed a

plea that waived proof of a factual basis for the menacing charge, and his counsel told the trial court that

Medina was doing so to take advantage of his plea

agreement. The trial court explained the consequences of the guilty plea to Medina, stopping several times to ensure that Medina understood. Each

time, Medina said that he did. In Medina's words, "it

was my choice" to plead guilty, and "[njobody forced

me." On that record, the postconviction court ruled

that Medina waived proof of a factual basis and voluntarily, knowingly, and intelligently pleaded guilty

to take advantage of his "incredibly favorable" plea

bargain.

23a

¶43 In this appeal, Medina's sole argument is that

the trial court was constitutionally required to find

that there was strong evidence of actual guilt, even

though Medina waived proof of a factual basis. As we

have discussed, there is no such requirement. Thus,

the postconviction court did not err.

IV. Conclusion

¶44 For the foregoing reasons, we affirm the division's judgment, albeit on slightly different grounds.

24a

APPENDIX B

Colorado Court of Appeals, Division III

The PEOPLE of the State of Colorado, PlaintiffAppellee,

v.

Delano Marco MEDINA, Defendant-Appellant.

Court of Appeals No. 19CA1196

Announced September 23, 2021

Lake County District Court No. 13CR52, Honorable Catherine J. Cheroutes, Judge

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney General, Denver, Colorado,

for Plaintiff-Appellee.

Krista A. Schelhaas, Alternate Defense Counsel,

Littleton, Colorado, for Defendant-Appellant.

Opinion by JUDGE JOHNSON

¶ 1 Plea bargains "are an accepted part of our jurisprudence" to resolve criminal cases in Colorado.

People v. Schneider, 25 P.3d 755, 759 (Colo. 2001).

Given their ubiquity, a situation that likely will occur again is an issue of first impression here: Are a

defendant's due process rights violated if he or she

enters into a plea agreement by waiving a factual

basis to the offense but does so in conjunction with

an Alford plea?

¶ 2 In North Carolina v. Alford, 400 U.S. 25, 91

S.Ct. 160, 27 L.Ed.2d 162 (1970), the issue was

whether a defendant could knowingly, voluntarily,

and intelligently plead guilty while simultaneously

professing his or her innocence. The United States

Supreme Court held that such a circumstance is

25a

permitted so long as "a defendant intelligently concludes that his interests require entry of a guilty

plea and the record before the judge contains strong

evidence of actual guilt." Id. at 37, 91 S.Ct. 160.

3 Not addressed in Alford, however, is whether

a defendant may waive the requirement that a judge

find "strong evidence of actual guilt" under applicable state criminal procedural rules. Id. Fed. R. Crim.

P. 11 and some state criminal rules, for example, do

not authorize waivers of a factual basis to facilitate

entry of a plea agreement. But our Crim. P. 11 does.

4 Although Colorado cases exist involving Alford

pleas, there are no cases specifically addressing a

district court's authority under Crim. P. 11 to permit

a defendant to waive a factual basis when presented

with a defendant's protestation of innocence. We

conclude that as long as the district court strictly

adheres to the provisions of Crim. P. 11, a defendant's due pr9cess rights are not violated if he or she

waives the requirement of a finding of a "strong" factual basis under Alford when entering a plea accompanied with a plea agreement. We do so because Alford did not intend to create a separate constitutional due process right when it observed that a plea of

guilty is permissible when there exists a "strong"

factual basis of actual guilt contained in the record.

¶ 5 In this case, because the record supports a

finding that the district court strictly complied with

the provisions of Crim. P. 11, defendant Delano

Marco Medina (Medina) knowingly, voluntarily, and

intelligently waived a factual basis for his Alford

plea to felony menacing, which was part of a global

plea agreement involving six criminal cases. Consequently, we affirm the postconviction court's order

26a

upholding Medina's judgment of conviction entered

pursuant to a plea agreement.

I. Background

¶ 6 In August 2013, Medina's wife called 911 and

"reported that her husband had held a knife to her

throat and threatened her." Medina's wife met with

a police officer at the Lake County Sheriffs Department and told him that she and Medina had been

arguing when the incident occurred. Police arrested

Medina and located a small knife in his pocket. Medina was arrested and charged with felony menacing

— real/simulated weapon.

7 Medina pled guilty to the menacing charge

with a stipulated one-year sentence in the custody of

the Department of Corrections (DOC) in exchange

for dismissal of the charges in five other cases.' Medina's sentence ran consecutively to a sentence he

anticipated he would receive in a Boulder County

case.2 Medina waived a factual basis, even though he

maintained his innocence to the menacing offense. In

other words, Medina contends, and the district court

acknowledged, that he entered an Alford plea.

¶ 8 The court set the matter over for sentencing,

but Medina posted bond and absconded for almost a

year until he was apprehended.

1 The other cases include Lake County case numbers 13CR53,

13CR63, 13T75, 13M131, and 13M130. All the charges from the

other cases are not identified in the record on appeal. But there

was testimony at the postconviction hearing that some of the

other charges included a bond violation, forgery, and two traffic

cases.

2 The Boulder County case was 13CR591. There was also testimony at the postconviction hearing that the charges from this

case involved theft and impersonation.

27a

¶ 9 At an initial appearance after his arrest, Medina's new counsel (plea counsel) — a different public defender than trial counsel who had represented

him until the plea hearing — stated that she intended to file a motion to withdraw his plea because new

evidence had emerged. The prosecutor indicated that

the district court should proceed with sentencing because Medina had "two active felonies" when Medina

pled to a "very generous one-year stipulated sentence" in the custody of the DOC.

¶ 10 At sentencing, Medina's counsel made another request to withdraw his plea. Medina claimed

that he thought an Alford plea left open the possibility that he could withdraw his plea based on new evidence. Medina also claimed he wanted to withdraw

his plea because the new evidence would show he did

not actually use a knife during the menacing incident. The district court denied Medina's motion and

sentenced him in accordance with the plea agreement.

¶ 11 Medina then filed a pro se motion for postconviction relief under Crim. P. 35(c). He claimed

that he was innocent of the menacing charge and

that he had received ineffective assistance from plea

counsel. He also claimed that he did not fully understand the implications of his guilty plea. The district

court appointed counsel for Medina (Rule 35 counsel).

¶ 12 The postconviction court set an evidentiary

hearing on the motion. Medina's plea counsel testified that Medina waived the factual basis for the

plea to enter into the plea agreement. Plea counsel

also testified that Medina did so because while he

may not have believed he was guilty of menacing, he

28a

nonetheless wanted to take advantage of the offer

because it would result in the dismissal of his other

pending cases and reduce his bond. Medina testified

that he was innocent of the menacing charge but

acknowledged his guilt in some of the other cases.

¶ 13 The postconviction court entered an order

denying Medina's motion. The court found that Medina had waived the factual basis of the charge because he wanted to take advantage of the plea offer.

The postconviction court alternatively found that,

based on the arrest warrant and complaint to felony

menacing, sufficient evidence in the record as a

whole supported a factual basis.

¶ 14 On appeal, Medina contends that (1) due process requires that an Alford plea be supported by

strong evidence in the record, a requirement that is

not waivable; (2) the postconviction court erred by

independently evaluating whether there was strong

evidence for the basis of the plea from the entire record instead of vacating the plea based on what occurred at the providency hearing; and (3) there did

not exist in the record strong evidence of his guilt.3

We do not address Medina's latter two contentions

because we conclude that, under Colorado law, a defendant who enters an Alford plea accompanied with

a plea agreement may waive a judicial finding that

there was strong evidence of guilt in the record. Medina knowingly, voluntarily, and intelligently waived

such a finding when he entered the guilty plea as

3 On appeal, Medina does not renew his claim of ineffective assistance of plea counsel. We consider this claim abandoned.

People v. Delgado, 2019 COA 55, ¶ 9, n.3, 442 P.3d 1021 (an

appellate court will not address claims raised below but not

reasserted on appeal).

29a

part of his plea agreement to the felony menacing

charge.

II. Standard of Review

¶ 15 We review whether a guilty plea was knowing, voluntary, and intelligent as a mixed question of

law and fact. People v. Vicente-Sontay, 2014 COA

175, ¶ 52, 361 P.3d 1046. In the context of a Rule

35(c) motion, "we review the [postconviction] court's

legal conclusions de novo but defer to the ... court's

factual findings if they are upported by the record."

People v. Corson„ 2016 CO 33, ¶ 25, 379 P.3d 288; see

also People v. Villanueva, 2016 COA 70, ¶ 28, 374

P.3d 535.

III. Requirement of "Strong" Evidence in the Record

¶ 16 Medina argues that (1) due process requires

that the district court ensure that he intelligently

concluded that his interests required entry of a

guilty plea; and (2) because an Alford plea must be

supported by "strong" evidence in the record, the district court erred by allowing Medina to waive this

requirement. We disagree because Medina's waiver

of a factual basis for the Alford plea when accompanied by a plea agreement does not violate due process of law.

¶ 17 The Due Process Clauses of both the United

States and Colorado Constitutions require that a

guilty plea be knowing, voluntary, and intelligent.

U.S. Const. amend. XIV; Colo. Const. art. II, § XXV;

see also Brady v. United States, 397 U.S. 742, 748, 90

S.Ct. 1463, 25 L.Ed.2d 747 (1970); People v. Dist. Ct.,

868 P.2d 400, 403 (Colo. 1994).

30a

¶ 18 In Colorado, a plea may be knowing, voluntary, and intelligent even if counsel enters the plea

and waives a factual basis to the underlying offense

when the defendant enters into a plea agreement.

Crim. P. 11(a) authorizes "[a] defendant personally

or by counsel" to plead guilty, not guilty, or, with

consent of the court, nolo contendere. That rule also

specifically authorizes a defendant to waive a factual

basis if certain criteria are met by stating

(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:

(6) That there is a factual basis for the plea. If

the plea is entered as a result of a plea agreement, the court shall explain to the defendant,

and satisfy itself that the defendant understands, the basis for the plea agreement, and

the defendant may then waive the establishment

of a factual basis for the particular charge to

which he pleads[.]

Crim. P. 11(b)(6) (emphasis added). If a factual basis

is waived, the requirement that such facts "be

properly determined by (1) facts admitted to by the

defendant, (2) facts or fact-finding stipulated to by

the defendant, or (3) facts found by a jury" is inapplicable. People v. Rockwell, 125 P.3d 410, 418 (Colo.

2005).4

We acknowledge that, if a defendant does not waive a factual

basis under Crim. P. 11 but protests his or her innocence when

31a

¶ 19 If our rule authorizes the waiver of a factual

basis, is a waiver permitted in the context of an Alford plea? Although Crim. P. 11 does not specifically

mention Alford pleas, we do not view this to be fatal.

Alford itself indicated that it did not "perceive any

material difference between a plea that [the defendant] refuses to admit commission of the criminal act

[nolo contendere] and a plea containing a protestation of innocence." 400 U.S. at 37, 91 S.Ct. 160; see

also Rockwell, 125 P.3d at 417 n.8 ("[T]he defendant

excuses the establishment of a factual basis for the

specific charge after a full explanation of the basis

for the plea agreement.").

20 Instead, the answer to this question, turns on

whether the requirement of a "strong" factual basis

is, as Medina suggests, constitutionally required, or

whether it is as we hold, simply part of the existing

due process requirement that ensures a defendant's

plea is knowing, intelligent, and voluntary.

¶ 21 Because we noted there are no Colorado cases on point, we first turn to Alford, federal cases, and

other states' cases to analyze how those authorities

have interpreted and applied the requirements for

this type of plea.

A. Alford and Federal Cases

22 Alford started out with this basic premise for

plea agreements: the "standard was and remains

whether the plea represents a voluntary and intellientering into a plea agreement, the "trial [court] should inquire

into factual guilt." In re Cardwell, 50 P.3d 897, 905 n.8 (Colo.

2002). In other words, absent a waiver of a factual basis, Alford

mandates that the burden shifts to the court to ensure there is

a strong factual basis in the record.

32a

gent choice among the alternative courses of action

open to the defendant." Alford, 400 U.S. at 31, 91

S.Ct. 160; see also Boykin v. Alabama, 395 U.S. 238,

242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When a

defendant pleads guilty, the defendant ordinarily

admits that he or she committed the crime charged

against him or her and consents to a judgment of

conviction. Alford, 400 U.S. at 32, 91 S.Ct. 160. Alford determined, however, that "[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison

sentence even if he is unwilling or unable to admit

his participation in the acts constituting the crime."

Id. at 37, 91 S.Ct. 160. It reasoned that when "a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the

judge contains strong evidence of actual guilt," see

id., then an Alford plea may be accepted by the

court.

¶ 23 There are two components to a plea when a

defendant protests his or her innocence: (1) that the

defendant's interests show he or she should enter

the plea; and (2) that there is strong evidence of actual guilt (also phrased in case law as a strong factual basis in the record) despite his or her protestations of innocence. Id. at 37-38, 91 S.Ct. 160.

¶ 24 Unresolved by Alford, however, is whether

the second component — a strong factual basis —

can be waived by the defendant. Alford indicated

that "[b]ecause of the importance of protecting the

innocent and of insuring that guilty pleas are a

product of free and intelligent choice," some states

and the federal courts "properly caution that pleas

coupled with claims of innocence should not be ac-

33a

cepted unless there is a factual basis for the plea."

Id. at 38 n.10, 91 S.Ct. 160 (emphasis added). But

the Court did not mandate that an Alford plea may

never be accepted if there was a waiver of a factual

basis.

¶ 25 Because the United States Supreme Court

did not hold in Alford, nor has it held thereafter,

that a finding of strong factual basis is constitutionally required, we next look to federal authorities concerning their interpretation of Alford.

¶ 26 Fed. R. Crim. P. 11(b)(3) requires a federal

court, regardless of the form of the plea, to "determine there is a factual basis." Medina relies on Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979), for

the proposition that a court commits constitutional

error if it accepts an Alford plea without first finding

a factual basis.

¶ 27 Willett focused on the voluntary nature of the

plea, which may be at odds when a defendant protests his innocence yet is willing to plead guilty.

Consequently, according to that court, "a judicial

finding of some factual basis for defendant's guilt is

an essential part of the constitutionally-required

finding of a voluntary and intelligent decision to

plead guilty." Id.

28 Other federal courts have come to a similar

conclusion that the voluntariness of a plea and a factual basis are inextricably linked and, for some

courts, constitutionally required. See, e.g., Stano v.

Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991) (although federal rules of criminal procedure are not

binding on the states, they represent the constitutional minimum requirements for a knowing and

voluntary plea in federal court); United States ex rel.

34a

Dunn v. Casscles, 494 F.2d 397, 399-400 (2d Cir.

1974) (emphasizing the need for a factual basis to

protect the innocent from a guilty plea); United

States v. Gaskins, 485 F.2d 1046, 1049 (D.C. Cir.

1973) (When a defendant protests his innocence,

Rule 11 "highlights the importance" of a district

court's obligation to "assure that there is indeed a

factual basis for the plea.").

¶ 29 But the federal courts are not in uniform

agreement that a strong factual basis is constitutionally mandated. For example, Willett — the case

relied on by Medina — specifically stated that its

"holding [of constitutional error without a factual

basis] does not imply that the terms of Fed. R. Crim.

P. 11 are constitutionally applicable to the states."

608 F.2d at 540 n.1 (emphasis added). As a result,

while some federal courts have given the strong factual basis requirement constitutional significance,

others have rejected that position. See, e.g., Loftis v.

Almager, 704 F.3d 645, 650 (9th Cir. 2012) (Although Alford did not "explicitly hold that a factual

basis was constitutionally necessary," some federal

courts have "drawn from the ... language" of Alford

to make it a requirement.).

¶ 30 Specifically, United States v. Newman, 912

F.2d 1119, 1123 (9th Cir. 1990), superseded by statute as stated in United States v. Wahid, 614 F.3d

1009 (9th Cir. 2010), stated that while a factual

predicate on the record is a "good and common practice," the defendant in that case did not cite to any

authority that such a requirement is "mandated in

state court by the Constitution." Instead, the "factual

basis [in state court] at the plea hearing may serve

35a

to indicate the knowing and voluntary nature of the

plea." Id.

31 Higgason v. Clark, 984 F.2d 203, 207 (7th

Cir. 1993), went further by specifically rejecting a

defendant's claim that a strong factual basis in the

record is a constitutional requirement for an Alford

plea. Instead, that court stated, "Alford tells us that

strong evidence on the record can show that a plea is

voluntary; it does not hold that only strong evidence

on the record permits a finding of voluntariness." Id.

Most relevant to our inquiry, Higgason concluded

that Alford "certainly does not imply that the factual-basis requirement of Fed. R. Crim. P. 11(f) and its

state-law counterparts comes from the Constitution."

Id.; see also McCarthy v. United States, 394 U.S. 459,

465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (Fed. R.

Crim. P. 11 "has not been held to be constitutionally

mandated," but "it is designed to assist the district

judge in making the constitutionally required determination that a defendant's guilty plea is truly

voluntary.").

32 We agree with the federal authorities to the

extent they acknowledge that a factual basis for a

plea is not constitutionally required. And while generally Colorado courts may find persuasive federal

case law interpreting rules that are analogous to

ours, see People v. Rivera, 56 P.3d 1155, 1163 (Colo.

App. 2002), "we are not bound to interpret our ...

procedur[al rules] in the same way that the United

States Supreme Court [or federal courts] interprets

its rules," Warne v. Hall, 2016 CO 50, ¶ 43, 373 P.3d

588 (Gabriel, J., dissenting); see also Antero Res.

Corp. v. Strudley, 2015 CO 26, ¶ 23, 347 P.3d 149

(noting that various provisions of C.R.C.P. 16 are

36a

"markedly different from the language" of its federal

counterpart). Thus, we will not reflexively follow

federal law that has construed a finding of a factual

basis in the record — strong or otherwise — to be

constitutionally required when (1) the federal rule is

"markedly different" from our own criminal procedural rule, see Antero Res. Corp., ¶ 23; and (2) the

federal courts do not agree as to the constitutional

significance of the "strong" factual basis requirement.

¶ 33 Because Fed. R. Crim. P. 11 and its state-law

counterparts do not derive from the Federal Constitution, we next turn to other states' opinions to determine whether their analyses of Alford provide a

compelling reason to accord constitutional significance to a court's finding of a strong factual basis.

B. Other States' Cases

¶ 34 Our review of other states' cases also reveals

a lack of uniformity on this issue. At least fortyseven states authorize Alford-type pleas, but there is

no consistent approach in dealing with this kind of

plea. See Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure:

The Case of Alford and Nolo Contendere Pleas, 88

Cornell L. Rev. 1361, 1372 n.52 (2003) (collecting

state cases authorizing Alford pleas).

¶ 35 Some states, for example, require a finding of

a factual basis before acceptance of an Alford plea

but do so because their Rule 11 counterparts or relevant statutory authority contain language similar to

the federal rule. See, e.g., People v. Watts, 67

Cal.App.3d 173, 136 Cal. Rptr. 496, 500-01 (1977)

(relying on state law); Robinson v. State, 291 A.2d

37a

279, 281 (Del. 1972) (state rule is modeled after federal rule); People v. Barker, 83 Il1.2d 319, 47 Ill.Dec.

399, 415 N.E.2d 404, 410 (1980) (state rule is modeled after federal rule); State v. Martin, No. 13-1819,

2014 WL 6977361, at *2 (Iowa Ct. App. Dec. 10,

2014) (unpublished opinion) (relying on the state's

rule that is similar to the federal rule, as it does not

authorize a trial court to "accept a guilty plea without first determining the plea has a factual basis,

and that factual basis must be disclosed in the record"); State v. Dillon, 242 Kan. 410, 748 P.2d 856,

859-60 (1988) (in analyzing a plea of nolo contendere

similar to an Alford plea, relying on Kansas rule,

which is similar to the federal rule); Reynolds v.

State, 521 So. 2d 914, 916 (Miss. 1988) (relying on

state rule); Brown v. State, 45 S.W.3d 506, 507-08

(Mo. Ct. App. 2001) (relying on state rule); State v.

Fontaine, 559 A.2d 622, 624 (R.I. 1989) (state rules

require a factual basis and affidavit completed by

the defendant); State v. Williams, 851 S.W.2d 828,

830 (Tenn. Crim. App. 1992) (state rule is modeled

after federal rule); State v. Johnson, 105 Wis.2d 657,

314 N.W.2d 897, 901 (1981) (relying on federal and

state case law).

¶ 36 Other states constitutionally require a factual basis by relying on Alford itself or other federal

case law. See, e.g., Allison v. State, 495 So. 2d 739,

741 (Ala. Crim. App. 1986) (relying on Willett);

Goodman v. Davis, 249 Ga. 11, 287 S.E.2d 26, 30

(1982) (relying on Alford); State v. Smith, 61 Haw.

522, 606 P.2d 86, 88-89 (1980) (relying on Alford to

require that "searching inquiry" must be made to

"defendant personally" to ensure the defendant understands the finality of his plea); Sparrow v. State,

38a

102 Idaho 60, 625 P.2d 414, 415 (1981) (relying on

Alford); State v. Linear, 600 So. 2d 113, 115 (La. Ct.

App. 1992) (relying on Willett); State v. Goulette, 258

N.W.2d 758, 760 (Minn. 1977) (relying on Alford);

State v. Stilling, 856 P.2d 666, 671 (Utah Ct. App.

1993) (relying on Alford).

¶ 37 Finally, some states have additional requirements before entry of a guilty plea. See, e.g.,

Commonwealth v. Eskra, 235 Pa.Super. 575, 345

A.2d 282, 285 (1975) ("[A] trial court must reject a

tendered plea of guilt if the defendant at the same

time recites facts sufficient to constitute a defense to

the criminal charge."); In re Barber, 2018 VT 78, TT

7-19, 208 Vt. 77, 195 A.3d 364 (Vermont's Rule 11

requires a defendant to personally make an admission of facts to the underlying charge before pleading

guilty, which cannot be substituted with a defendant's oral admission or a stipulation by the parties);

State v. Garcia, 192 Wis.2d 845, 532 N.W.2d 111,

116 n.5, 117 (1995) (although not constitutionally

required, the court recommends a finding in the record of a "strong proof of guilt") (citation omitted).

¶ 38 Our primary duty is to interpret our supreme

court's procedural rule. When out-of-state precedent

lacks consistency or is based on materially different

language in other states' rules or statutory authorities, we conclude that there is no persuasive reason

to adopt those state's approaches to this issue. See

People v. Weiss, 133 P.3d 1180, 1187 (Colo. 2006)

(our state courts may look to other states when dealing with an issue of first impression but that precedent is not binding); see also DC-10 Ent., LLC v.

Manor Ins. Agency, Inc., 2013 COA 14, ¶ 18, 308

P.3d 1223 (same).

39a

¶ 39 We thus turn to Colorado case law to determine whether our supreme court's view of Alford is

incompatible with the notion that a strong factual

basis requirement may be waived because it is not

constitutionally required.

C. Colorado Cases

¶ 40 From our research and the parties' briefing,

there appears to be no Colorado case dealing specifically with whether a defendant may waive the requirement of judicial finding of a strong factual basis

before entering an Alford plea. But case law suggests

that such a requirement is not inconsistent with,

much less a violation of, any constitutional requirement so long as the other provisions of Crim. P. 11

are strictly satisfied.

¶ 41 We start with the plain language of Crim. P.

11, which in authorizing a waiver of a factual basis

under Alford when entering into a plea agreement, is

consistent with Colorado case law that has treated

an Alford plea like any other guilty plea. See

Schneider, 25 P.3d at 759 (affirming that our supreme court and the United States Supreme Court

"have both concluded that an Alford plea is the functional equivalent of a guilty plea within the system").

¶ 42 We next turn to our supreme court's pronouncements on what constitutes a knowing, intelligent, and voluntary plea. People v. Canino, 181 Colo.

207, 209, 508 P.2d 1273, 1274 (1973), analyzed

whether a defendant could withdraw postconviction

a plea of nolo contendere when he asserted his innocence at the providency hearing. In rejecting the argument that such a plea must be withdrawn, the

court noted that its concern has "always been with

40a

reality and not ritual" when dealing with guilty

pleas. Id. at 211, 508 P.2d at 1275. In other words,

the court concluded that the constitution required

that "the defendant be aware of the elements of the

offense and that he voluntarily and understandingly

acknowledge his guilt. A formalistic recitation by the

trial judge at a providency hearing is not a constitutional requisite." Id.

¶ 43 Later, in People v. Cushon, 650 P.2d 527, 529

(Colo. 1982), our supreme court indicated that, to accept a plea where a defendant protests his innocence,

the court must adhere to "[t]he strictest compliance

with the rules governing a plea of guilty." (Emphasis

added.) Although that case did not involve an Alford

plea, the wording of Crim. P. 11 at that time also authorized the waiver of a factual basis. Id. at 527 n.1.

Consequently, the strictest compliance with the

rules governing guilty pleas ostensibly would likewise authorize waiver of a factual basis when accompanied with a plea agreement, especially when

the court in that case reiterated its holding from Canino that "Crim. P. 11 requirements do[ ] not impose

a prescribed ritual or wording before a guilty plea

may be accepted." Id. at 528.

¶ 44 More recently in People v. Birdsong, 958 P.2d

1124 (Colo. 1998), our supreme court analyzed

whether an Alford plea is invalid if a district court

fails to advise the defendant on all collateral consequences of the sentence. Related to its analysis and

relevant to our issue here, Birdsong relied on language in Alford to hold that "[a]n Alford plea is a

guilty plea," and therefore "the trial court's obligations to advise the defendant were no greater than

with any other guilty plea." Id. at 1127; see also Peo-

41a

ple v. Venzor, 121 P.3d 260, 264 (Colo. App. 2005) (no

obligation of the district court to advise the defendant on the meaning and nature of an Alford plea). In

reaching this conclusion, Birdsong referred to Alford's statement that "an express admission of guilt

`is not a constitutional requisite to the imposition of

a criminal penalty.'" 958 P.2d at 1128 (quoting Alford, 400 U.S. at 37, 91 S.Ct. 160); see also Carmichael v. People, 206 P.3d 800, 808 (Colo. 2009) ("[A]

defendant may maintain his innocence while nonetheless entering into a valid plea agreement."); Lacy

v. People, 775 P.2d 1, 9, n.11 (Colo. 1989) (a district

court is not constitutionally obligated to determine

that an adequate factual basis existed to support a

non-Alford plea).

¶ 45 If there is no "constitutional requisite" for an

express admission of guilt, see Birdsong, 958 P.2d at

1128, and our Crim. P. 11 allows for the waiver of a

factual basis when accompanied with a plea agreement, we conclude our supreme court's view of Alford is not inconsistent or incompatible with Alford

itself. Indeed, our conclusion is consistent with the

touchstone of whether a district court accepts a defendant's decision to enter into the plea agreement,

which must be based on a "voluntary and intelligent

choice." Schneider, 25 P.3d at 760 (citation omitted);

see also McCarthy, 394 U.S. at 465, 89 S.Ct. 1166

(Although the procedures in Fed. R. Crim. P. 11 are

not "constitutionally mandated," they exist to assist

district court judges to ensure constitutionally that

"a defendant's guilty plea is truly voluntary.").

¶ 46 It is certainly true that a voluntary and

knowing choice may be evidenced by a finding of a

strong factual basis for the charged offense that the

42a

defendant acknowledges. And no doubt a district

court judge's finding of a strong factual basis in the

record is a better practice than a waiver of a factual

basis when confronted with an Alford plea and

would insulate acceptance of the plea against postconviction challenges such as the one Medina raised.

Likewise, a court need not accept a guilty plea if the

defendant protests his or her innocence and is also

unwilling to waive a factual basis under Crim. P. 11.

See Alford, 400 U.S. at 38 n.11, 91 S.Ct. 160 ("A

criminal defendant does not have an absolute right

under the Constitution to have his guilty plea accepted by the court.").

47 Critical to our analysis is that Crim. P. 11's

authorization to waive a factual basis when accompanied by a plea agreement must also be supported

in the record as a defendant's voluntary and knowing decision. And the waiver of a factual basis may

be demonstrated in the record in a multitude of ways

and not necessarily through "ritualistic" or "talismanic" language; indeed, review of the entire providency transcript may indicate that the defendant

understood the implications of his or her guilty plea

even if he or she waives a judicial finding of a strong

factual basis to the charged offense while simultaneously protesting one's innocence.

¶ 48 To summarize, we agree with Medina that

the strong factual basis from Alford is required as

part of constitutional due process. We disagree with

him, however, that this requirement is a separate

element — or separate constitutional due process

right — from a court's requirement generally to determine whether a defendant knowingly, voluntarily,

and intelligently entered a plea agreement. See Lacy,

43a

775 P.2d at 5 ("[D]ue process generally [does not] require that the record demonstrate an adequate factual basis for the plea. ... [But] [t]he situation may be

otherwise ... where the defendant insists that he is

innocent."). Given the number of constitutional

rights that are waived with the acceptance of a plea,

we are hard-pressed to understand how waiver of a

factual basis — if all of the other provisions of Crim.

P. 11 are strictly satisfied based on the providency

record — renders an Alford plea involuntary as a

matter of law. See Patton v. People, 35 P.3d 124, 128

(Colo. 2001); see also People v. Wade, 708 P.2d 1366,

1369 n.4 (Colo. 1985) (In Boykin,, the United States

Supreme Court "specified three constitutional rights

waived by a defendant who tenders a guilty plea: the

privilege against compulsory self-incrimination; the

right to trial by jury; and the right to confront one's

accusers.").

D. Application

¶ 49 We conclude for three reasons that Medina's

Alford plea, even though he waived a factual basis

through counsel, was nonetheless voluntary, knowing, and intelligent.

50 First, plea counsel's waiver of the factual basis on behalf of Medina at the providency hearing

complied with Crim. P. 11.

¶ 51 During the hearing, Medina's plea counsel

made a record that "[Medina] steadfastly maintains

that the menacing would not be a provable case" and

"in his heart of hearts he does not believe he's guilty

of that." Medina's plea counsel also acknowledged

that in spite of his client's claim of innocence to

menacing, Medina was entering a plea to the menac-

44a

ing charge "to take advantage of the plea bargain"

and that Medina "waiv[ed] proof of a factual basis"

for that charge.

¶ 52 The district court thoroughly questioned Medina as to his understanding of the plea agreement.

The district court asked Medina if he had been using

drugs, had a history of mental illness, was thinking

clearly, had enough time to talk to his lawyer, was

satisfied with the advice from his lawyer, and was

aware of the various rights he would be waiving.

¶ 53 The district court then delineated the rights

Medina would be waiving by stating,

Let me go over some of these things with you

real quick, because you're giving up some serious rights here. And you're also pleading guilty

to a felony, which is pretty serious, has longlasting ramifications. So I want to make sure

you fully understand what you're doing.

First off, if you were to go to trial, you have the

right to have a trial by a judge or a jury. At a

trial you have the right to remain silent, which

means you would not have to testify at all. And

if you didn't testify, I would tell the jury they

cannot use your silence against you in any way.

This would be a speedy public trial. At that trial you have the right to see, hear and face all

THE DEFENDANTes [sic] that were called to

testify against you, and your lawyer would

[have] the right to cross-examine them.

At the trial the People would have to prove

each on [sic] every element of the charge by

proof beyond a reasonable doubt. If the People

could not do that, you would be found not

45a

guilty. At the trial you could testify if you

wanted to, but nobody could make you testify.

Likewise, nobody could stop you from testifying. Whether you testified or not is your decision and yours alone. You are presumed to be

innocent of the charges, and this presumption

of innocence remains with you until you tell me

guilty or you are found guilty after trial.

At a trial you have the right to present witnesses on your own behalf and you can get subpoenas, which are court orders, making them

come to court. If you were convicted after trial,

you'd have the right to appeal your conviction

to a higher court and you would have the right

to present any legal defenses you might have to

the charge.

Do you understand by pleading guilty you are

giving up those rights?

[MEDINA]: Yes.

To the charge of menacing, the district court then

explained,

Now I know that you're admitting — essentially,

we're kind of doing an Alford plea. Aren't we

really, basically? All right.

So the plea agreement, before you can be found

guilty at this trial the People would have to

prove that on about the date and place charged

you, by threat or physical action, knowingly

placed or attempted to place another person in

fear of imminent serious bodily injury. And that

you used some sort of a weapon or deadly

weapon in that case. And I understand you're

not admitting that you did that, except that

46a

you're saying "I'm willing to plead guilty." But

you understand if you didn't, if you pled not

guilty, he'd have to prove each of those things

by proof beyond a reasonable doubt?

MEDINA: Yes.

Medina was therefore apprised that felony menacing

involved a threat with a weapon, so he cannot now

claim that a weapon was not involved or he was unaware that this was an element of the crime.

¶ 54 The district court also advised Medina that

once he pled guilty, his decision was "final" by stating,

All right. Let's see. Once you plead guilty, this

is a final decision. You cannot come back at another time, change your mind, plead not guilty

and have a trial. Do you understand that?

MEDINA: Yes.

Following these colloquies, the district court found

that Medina "waived the factual basis" for his plea

and that his entering the plea was "freely, voluntarily, knowingly and intelligently given."

¶ 55 Second, besides his argument that he cannot

waive a factual basis under Alford — which we reject

— Medina does not challenge on any other basis that

his plea was invalid. Indeed, Medina does not challenge, much less argue, that Crim. P. 11(b)(6) is constitutionally deficient given that the plain language

of that rule permits a waiver of factual basis for all

types of pleas entered as a result of a plea agreement.

¶ 56 And he does not dispute that the terms of the

plea agreement were fully explained to him or that

he signed the agreement, understood he was waiving

47a

a factual basis, and understood the legal consequences flowing from the agreement. Therefore, the

record supports that his acceptance of the plea entered as a result of his plea agreement at the providency hearing under Crim. P. 11 was knowing, voluntary, and intelligent. See Patton, 35 P.3d at 128

("Because a guilty plea effectuates such an extensive

waiver [of constitutional rights], a challenge to the

conviction entered thereon is normally limited to

whether the plea itself was voluntary and intelligent.").

¶ 57 Third, Medina waived the factual basis

through plea counsel to take advantage of the generous global disposition of his other cases. In other

words, Medina's "interest" was served by entering

the global disposition. Alford, 400 U.S. at 33, 91

S.Ct. 160 ("As one state court observed nearly a century ago, `Weasons other than the fact that he is

guilty may induce a defendant to so plead, ... (and)

(h)e must be permitted to judge for himself in this

respect.' " (quoting State v. Kaufman, 51 Iowa 578, 2

N.W. 275, 276 (1879))); see also State v. Albright, 564

S.W.3d 809, 817 n.5 (Tenn. 2018) (an Alford plea is

sometimes referred to as a "best interest" plea).

¶ 58 Medina's Alford plea is analogous to situations addressed in other Colorado opinions that upheld plea agreements where a defendant agreed to

plead guilty to an added charge in which there was

no factual basis to take advantage of a plea bargain.

¶ 59 For example, in People v. Isaacks, 133 P.3d

1190, 1191 (Colo. 2006), our supreme court held that

although a defendant could not be sentenced under

the aggravated sentencing range, he nonetheless

could be sentenced under the presumptive range

48a

when there was a waiver of a factual basis for a

charge of conspiracy not supported by the facts "to

take advantage of the plea bargain." Similarly, in

People v. Maestas, 224 P.3d 405, 409 (Colo. App.

2009), a division of this court held that, in waiving a

factual basis for second degree assault, the defendant waived her ability to avoid being subject to the

possibility of consecutive sentences, as "she could

have rejected any plea agreement that called for

guilty pleas to multiple charges unless the charges

were clearly based on identical evidence."

¶ 60 Although those cases dealt with sentencing

and not the requirements of a plea agreement, the

point remains the same: When a "fictitious" charge is

part of the plea bargain presented to a defendant —

for which there can clearly be no factual basis —

waiving the strong factual basis for an Alford plea,

to the extent the other provisions of Crim. P. 11 are

strictly adhered to, is no different. Again, the analysis comes down to whether the district court record

supports the defendant's voluntary, knowing, and

intelligent decision to waive all rights afforded him

or her, including the waiver of a judicial finding of a

factual basis when the defendant chooses, the prosecutor authorizes, and the district court accepts an

Alford plea as a part of a plea agreement.

¶ 61 Of significance here is that at the providency

and postconviction hearings Medina expressly admitted his guilt to some of the offenses for which he

was charged in the global disposition. Specifically, at

the providency hearing, Medina's plea counsel stated

that "there are other cases, in particular a bond violation, which do[ ] not have a defense." Also at the

postconviction hearing, Medina's plea counsel testi-

49a

fled that Medina waived the factual basis because

"while [Medina] may have been guilty of some of the

other charges[,] ... he was not guilty of the menacing,

but he still wanted to take the plea agreement." Medina himself even testified at the postconviction

hearing that he "knew the menacing case was false,"

but he further stated, "[t]he other cases I was guilty

of. So that's kind of how this whole dilemma happened where I was guilty of some things but not

guilty of other things."

¶ 62 Finally, separate from his contention that a

judicial finding of a factual basis cannot be waived,

Medina separately argues that withdrawing an Alford plea should be easier to withdraw than a nonAlford plea. Medina claims he would not have entered an Alford plea had he known that it would be

so difficult to withdraw it later given his view that

he had "new" evidence. We reject this contention.

Birdsong made clear that if a district court advises

the defendant on all the direct consequences flowing

from an Alford plea, there is nothing "inherent" in

such a plea that creates any special promises or limitations on the punishments that may be imposed.

Birdsong, 958 P.2d at 1130 (citation omitted). The

court in Birdsong relied on State ex rel. Warren, v.

Schwarz, 211 Wis.2d 710, 566 N.W.2d 173, 177 (Wis.

Ct. App. 1997), aff'd, 219 Wis.2d 615, 579 N.W.2d

698 (1998), which reasoned that,

[m]ore accurately stated, an Alford plea, if accepted by the court, permits a conviction without requiring an admission of guilt and while

permitting a protestation of innocence. There is

nothing inherent in an Alford plea that gives

the defendant any rights, or promises any limi-

50a

tations, with respect to the punishment imposed after the conviction.

Birdsong, 958 P.2d at 1130 (citation omitted).

¶ 63 To the extent Medina "thought" it would be

easier to withdraw such a plea after the fact, we are

unpersuaded for two reasons. First, the district court

made clear — and Medina acknowledged — that his

decision to enter a plea was "final" and the court told

him that he could not come back later and have a jury trial. Second, our supreme court has rejected the

idea that there should be a more lenient standard

given to a defendant to withdraw an Alford plea on

grounds of newly discovered evidence than normally

applies to such a motion. Schneider, 25 P.3d at 759

(rejecting proposition that an Alford plea "may be

withdrawn with greater liberality than a guilty or no

contest plea").5

¶ 64 Given the benefit of the bargain of a "very

generous" deal as described by the prosecutor, and

Medina's acknowledgment that he was guilty of

5 This is not a situation in which a defendant presented newly

discovered evidence to support his claim of innocence. Medina

"claims" there are recorded jailhouse calls of his wife purportedly recanting her allegation that he had a knife when he

threatened her. Even assuming this is true, this evidence was

known well before his plea agreement, he still does not have

any of the recordings to substantiate his contentions, and his

Rule 35 counsel even acknowledged at the postconviction hearing that this did not likely qualify as newly discovered evidence. See People v. Schneider, 25 P.3d 755, 761-62 (Colo. 2001)

(the test for withdrawal of plea due to newly discovered evidence for all pleas includes (1) discovery of the evidence occurred after the plea and could not have been discovered before;

(2) charges against the defendant were actually false or unfounded; and (3) the newly discovered evidence would probably

bring about an acquittal at a new trial).

51a

some but not all charges in his six criminal cases,

this is a situation where competing interests were

contemplated and served by a global disposition. See

Patton, 35 P.3d at 135 (Coats, J., dissenting) ("a defendant may plead guilty to an offense that he simultaneously claims not to have committed, if, in light

of the evidence against him, it is tactically in his best

interest to do so."; see also Schneider, 25 P.3d at 760

(A defendant's decision to plead guilty "is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted." (quoting Brady, 397 U.S. at 756,

90 S.Ct. 1463)).

¶ 65 Accordingly, because Medina does not challenge the validity of his plea as being involuntary on

any other basis beyond it lacks a judicial finding of a

strong factual basis — which he waived under Crim.

P. 11(b)(6) — we conclude the postconviction court

did not err in its finding that he voluntarily, knowingly, and intelligently entered into his plea agreement.

E. Medina's Two Remaining Contentions

¶ 66 Based on our disposition of Medina's first issue, we decline to address his other two issues.

IV. Conclusion

¶ 67 The district court's order is affirmed.

Furman and Graham*, JJ., concur

* Sitting by assignment of the Chief Justice under provisions of

Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2020.

52a

APPENDIX C

District Court, Lake County, of Colorado

PEOPLE OF THE STATE OF COLORADO,

Plaintiff,

v.

DELANO MARCO MEDINA,

Defendant.

Case Number: 2013CR52

Date Filed: May 22, 2019

ORDER RE: DEFENDANT'S PETITION FOR

POST-CONVICTION RELIEF PURSUANT TO

COLO. R. CRIM. P. 35(c)

THIS MATTER, came before the Court on the Defendant's Petition for Post-Conviction Pursuant to

Colo. R. Crim. P. 35(c). A hearing was conducted on

April 12, 2019. The Defendant appeared in custody

with his counsel Erin Wigglesworth. The People

were represented by Deputy District Attorney Lauren Crisera. After hearing the testimony, evidence

presented and otherwise being fully apprised in the

premises, the Court hereby FINDS and ORDERS as

follows:

I. PROCEDURAL HISTORY

On August 26, 2013, the Defendant was charged

in this case with one count of Menacing pursuant to

C.R.S. § 18-3-206(1)(a)/(b), a class 5 felony. The basis

of the complaint as indicated in the warrantless arrest affidavit was that the Defendant "pulled out a

knife and held it to [Ashley Medina's] throat and told

53a

her: 'You're not going to tell me what to do. I'm the

man."' Ashley Medina was Mr. Medina's wife. On

September 23, 2013, the Public Defender's officer entered in the case and made a Request for a Preliminary Hearing.

On September 30, 2013, the Defendant appeared

in court with his public defender, Sommer Spector.

At that time, in addition to the case at hand, the Defendant also had two new cases, 13CR53 and

13CR63 (along with several misdemeanor and traffic

cases). The Court advised the Defendant on the two

new cases and the issue of bond was addressed in

each case. The minute order indicates that the bond

in 13CR52 had been revoked but was reset to

$10,000 cash/surety, that in 13CR53 there was a

$100,000 cash bond or a $1 million cash/surety bond

and that in 13CR63 there was a $10,000 cash bond

cash/surety bond.

On October 16, 2023, the cases were bound over to

District Court after the Defendant waived the preliminary hearing. Thereafter, public defender Dana

Christensen took over Mr. Medina's representation.

In a hearing on November 1, 2013, the Defendant's

bond in 13CR53 was reduced to $25,000 cash/surety.

The case was ultimately set for a Motions Hearing

on January 9, 2014.

On the January 9, 2014 date, the Court was advised that there was a plea agreement which would

dispose of all of Mr. Medina's cases. Mr. Christensen

advised the Court that the Defendant would plead

guilty to the charge of Menacing, a class 5 Felony

(non-Domestic Violence), in exchange for the dismissal of his other five cases (13CR53, 13CR63, 13M130,

13M131, and 13T175). The parties stipulated to a

54a

sentence of 1 year in the Department of Corrections

to run consecutive to a sentence the Defendant anticipated from a Boulder County case.

The Record reflects that the Defendant waived a

factual basis for the purpose of availing himself of

the plea bargain in the case and entered an Alford

plea. Specifically, Mr. Christensen advised the Court

that "Mr. Medina steadfastly maintains that the

menacing would not be a provable case. However,

there are other cases, in particular a bond violation,

which does not have a defense, and so he is entering

a plea to menacing even though in his heart of

hearts he does not believe he's guilty of that in order

to take advantage of the plea bargain, so to that extent he would be waiving proof of a factual basis."

Tr. January 9, 2014, p. 3:4-11. The Guilty Plea and

Waiver of Rights signed by the Defendant and the

court and filed on January 9, 2019 [sic] stated: "I

understand that there is a factual basis for by [sic]

guilty plea, I waive establishment of a factual basis."

Plea Agreement, January 9, 2014, p. 3, Paragraph

8(e). Furthermore, the Court found at the providency

hearing that the Defendant's waiver of the factual

basis and his entry of plea were made knowingly,

voluntarily and intelligently.

The matter was continued for sentencing to February 21, 2014 and the Defendant was released from

custody after posting the $10,000.00 bond in

13CR52.

The Defendant failed to appear for his February

321, 2014 sentencing date and a warrant issued for

the Defendant's arrest with a bond set at $50,000.00.

After nearly a year, the Defendant appeared in custody on January 22, 2015 on the 13CR52 case along

55a

with a new case, 14CR17. The Defendant, represented by a new public defender, Thea Reiff, indicated

his intent to file a Motion to Withdraw his plea in

13CR52. The Court denied the Defendant's oral motion at that time, indicating that the sentence was

stipulated. However, the Court told the Defendant

that he could file a written motion if he felt there

were grounds to withdraw the plea. The Defendant

did not file any such motion. On March 29, 2015 the

matter came on for sentencing. The Court did not

permit the Defendant to withdraw his plea on that

date, despite his protestations that he was an "innocent man." The Court proceeded to sentence the Defendant to 1-year Department of Corrections with

credit for 165 days served.

On February 26, 2018, the Defendant filed his

Motion for Post-Conviction Relief Pursuant to Colo.

R. Crim. P. 35(c). By the date of the filing of the Motion and the hearing on the Defendant's 35(c) motion, he had already served his sentence in Lake

County 13CR52. Mr. Medina's Motion and his supplemental motion requests that he be permitted to

withdraw his guilty plea on the ground that Mr.

Christensen's representation of him was ineffective

and because he alleges that the plea he entered was

in violation of due process of law because no factual

basis was provided. As such, he requests that his

plea in 13CR52 be withdrawn and that all of the

charges in all of the cases (13CR53, 13CR63,

13M130, 13M131 and 13T175) be reinstated.

STATEMENT OF THE LAW

The Defendant here argues that 1) his attorney

was ineffective because the Defendant believed that

56a

by entering an Alford plea he would be permitted to

withdraw the plea at a later time, and therefore, his

plea was not "voluntary"; and 2) that the waiver of a

factual basis does not conform with due process requirements that the plea be entered into voluntarily.

These are claims pursuant to Colo. R. Crim. P.

35(c)(1). He has not made an argument that he

should be entitled to withdraw his plea based upon

the discovery of new evidence pursuant to Colo. R.

Crim. P. 35(c)(2)(V). See, People v. Schneider, 25

P.3d 755 (Colo. 2001)

Colo. R. Crim. P. 35(c)(2) provides that every person convicted of a crime has a right to seek postconviction relief if (as relevant to this case) the conviction was obtained in violation of the Constitution or

laws of the United States or Colorado.

The right to bring a postconviction attack to the

validity and legality of a conviction or sentence

is statutory, not constitutional. People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) ("Rodriguez V'). In reviewing a Crim. P. 35(c) claim,

we presume the validity of the conviction and

the defendant bears the burden of proving his

claims by a preponderance of the evidence. Id.;

People v. Naranjo, 840 P.2d 319, 325 (Colo.

1992); Kailey v. Colo. Dept. of Corr., 807 P.2d

563, 567 (Colo. 1991). The trial court that presides over a Crim. P. 35(c) hearing is the trier

of fact and bears the responsibility of determining the weight and credibility to be given to

witness testimony. Kailey, 807 P.2d at 567;

Lamb v. People, 174 Colo. 441, 446, 484 P.2d

798, 800 (1971). Where the evidence in the record supports the findings and holding of the

57a

court, the judgment of the court will not be disturbed on review. Kailey, 807 P.2d at 567;

Lamb, 174 Colo. At 446, 484 P.2d at 800.

Dunlap v. People, 173 P.3d 1054, 1061-1062 (Colo.

2007).

The test for ineffective assistance of counsel was

set forth in Strickland v. Washington, 466 U.S. 668

(1984) and addressed by numerous cases in Colorado

including People v. Rodriguez, 914 P.2d 230, 294 (Colo. 1996); Davis v. People, 871 P.2d 769, 772-73 (Colo.

1994); People v. Garcia, 815 P.2d 937, 941 (Colo.

1991). Specifically, the defendant bears the burden

of showing both that counsel's performance was deficient, and that the deficient performance prejudiced

the defense. Dunlap at 1062.

Colo. R. Crim. P. 11(b) lays out the requirements a

court must follow in accepting a plea of either guilty

or nolo contendere. The defendant must have been

advised of his rights pursuant to Colo. R. Crim. P.

5(a)(2) and the court must also determine that the

defendant understands the nature and elements of

the offense to which is pleading and the effect of his

plea; that his plea is voluntary; that he understands

his right to a jury trial and that we [sic] waives that

right, that he understands the possible penalties associated with the plea; and that the defendant understands that the court is not bound by any representations made to the defendant regarding any possible sentence. Colo. R. Crim. P. 11(b)(1)-(5). Subsection (6) requires that there be a factual basis for a

plea. But, "[i]f the plea is entered as a result of a

plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands, the basis for the plea agreement, and the de-

58a

fendant may then waive the establishment of a factual basis for the particular charge to which he

pleads."

When a defendant enters a plea but indicates that

the plea is either nolo contendre [sic], or with protestations of innocence, the Court must comply with the

requirements of North Carolina v. Alford, 400 U.S.

25 (1970). The plea itself has the same effect as a

guilty plea, but the record before the court must also

contain strong evidence of actual guilt, despite the

plea. "Nor can we perceive any material difference

between a plea that refuses to admit commission of

the criminal act and a plea containing a protestation

of innocence when, as in the instant case, a defendant intelligently concludes that his interests require

entry of a guilty plea and the record before the judge

contains strong evidence of actual guilt." Alford, 400

U.S. at 37 (1970). See also People v. Schneider, 25

P.3d 755, 759 (Colo. 2001) ("So long as the defendant

intelligently concludes that his interests require entry of a guilty plea and the record before the judge

contains strong evidence of actual guilt, a guilty plea

is sufficient whether or not defendant admits actual

guilt for the acts constituting the crime."); People v.

Birdsong, 958 P.2d 1124, 1127 (Colo. 1998) ("An Alford plea is a guilty plea. As such, the trial court's

obligations to advise the defendant were no greater

than with any other guilty plea."); People v. Venzor,

121 P.3d 260, 264 (Colo. App. 2005) ("Contrary to defendant's argument, the trial court was not required

to advise him of the meaning and nature of an Alford

plea. The court was only required to (1) comply with

Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23

L.Ed.2d 274 (1969), as codified in Crim. P. 11, and

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(2) satisfy itself that defendant intelligently concluded his interests required entry of the plea despite

protestations of innocence, and that there was strong

evidence of actual guilt.").

III. FINDINGS OF FACT AND

CONCLUSIONS OF LAW

A. Ineffective Assistance of Counsel

1. Whether counsel's performance fell below an

objective standard of reasonableness.

The Defendant claims that his plea was not entered voluntarily because his attorney failed to advise him that by entering his plea he would not be

able to withdraw that plea at a later time. But for

his belief that he could withdraw the plea, the Defendant claims, he would not have entered into the

plea agreement.

Effective assistance of counsel in the context of

the entry of a guilty plea requires that the attorney

have informed himself of the material legal principles that might impact the particular legal circumstances of his client. See, People v. Pozo, 746 P.2d

523, 529 (Colo. 1987) (discussing advisement of deportation consequences of a guilty plea). In the context of this case, Mr. Christensen testified that the

Defendant had several cases and that his recollection of the events was that the Defendant was primarily focused on the ability to make bond upon the

entry of a plea. He recollected that while the Defendant was unable to bond on all three felony cases,

he would be able to bond out on the one case to

which he pled guilty. Mr. Christensen also testified

and it appears clearly in the transcript as well, that

while there may have been a defense to the menac-

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ing charge, the charges in the other two cases that

were dismissed would be difficult to defend. The

transcript supports Mr. Christensen's testimony.

With respect to the advisement of his client regarding the plea, Mr. Christensen testified that it

was his practice to review the plea paperwork thoroughly with a defendant prior to the entry of a plea

and inquire if there were any questions. Mr. Christensen testified that he does not, as part of his practice, advise clients about withdrawal of a guilty plea

prior to sentencing. He did not recall any conversation with the Defendant about the ability to withdraw a plea. Mr. Christensen did testify that if he

had been asked about the ability to withdraw a

guilty plea he would have advised a client that it is

difficult. That a plea can be withdrawn only if there

is new evidence that would not or could not have

been discovered prior to the entry of the plea; if there

is some reason that the intent of the plea bargain

cannot be effected (the dismissal of other cases as an

example); or if the court did not accept a stipulated

sentence. Mr. Christensen was very clear that a

change of heart was not a sufficient reason to withdraw a plea.

The Court can find no authority, or was there any

evidence presented, that the failure to advise a defendant of the ability to withdraw a guilty plea is below the standard of reasonableness for defense counsel. There is no such advisement in Colo. R. Crim. P.

5 or 11. There is no indication on the record that this

was an issue that Mr. Medina was concerned with.

In fact, the only issue the Defendant raised throughout the colloquy was the issue of presentence confinement credit—which evidences a very different

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mindset than intending to withdraw the plea. See.

January 9, 2014 Tr. 6:21-22. Other issues, such as

the Alford plea and whether there was a domestic

violence finding to be made in the case were addressed with the Court. Furthermore, both the plea

paperwork and the Court's Rule 11 advisement,

along with the Defendant's responses to the Court's

question indicate a clear intent and acknowledgment

of the nature of his plea. See e.g. Jan. 9, 2014 Tr.

7:23-8:2 (Court's advisement as to the finality of a

plea). The Court declines to find Mr. Christensen's

alleged failure to advise Mr. Medina regarding the

withdrawal of a plea to be unreasonable.

2. Whether the Defendant was prejudiced.

Even if Mr. Christensen's representation somehow fell below the standard of reasonableness, it is

difficult to see how Mr. Medina was prejudiced. Assuming, for argument's sake, that Mr. Medina had

been advised regarding his ability to withdraw a

guilty plea. Presumably, Mr. Christensen would

have given Mr. Medina the advisement he testified

to at the hearing. Then Mr. Medina would have been

informed that it would be unlikely that the Court

would permit him to withdraw the plea. Or, if he was

permitted to withdraw the plea, all the other charges

would be reinstated. At that time, Mr. Medina's

choice would have been to proceed to a Motions hearing and remain in custody pending further proceedings or accept the offer. The testimony was clear that

Mr. Medina's motivation for accepting the offer was

his ability to bond out. Although Mr. Medina testified during the 35(c) hearing that he would have

taken the cases to trial, it seems likely to the Court

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that given the choice between a stipulated 1-year

DOC sentence with the ability to immediately bond

vs. continued custody and the likelihood of conviction

on numerous other charges, that Mr. Medina would

have made the same choice. The Court finds Mr.

Medina's testimony on this point to be less than

credible. The Court can find no prejudice to the Defendant even if there were a failure to advise.

B. Factual Basis and Voluntariness of the

Defendant's Plea

The transcript is clear that the Defendant waived

the establishment of the factual basis on the Record

as he was entering the plea pursuant to a plea bargain as provided in Colo. R. Crim. P. 11(b)(6). However, he entered an Alford plea which does require

the record to contain "strong" evidence of actual

guilt. And, while there was a representation that in

his other cases "in particular a bond violation which

does not have a defense" the transcript of the providency hearing indicates that the factual basis was

waived by the defense. The Defendant alleges that

the waiving of the factual basis makes the Defendant's plea involuntary and in violation of his constitutional due process rights.

Pursuant to Alford, the "record" must contain evidence of the factual basis. In a 10th Circuit Court of

Appeals case (interpreting the federal version of the

factual basis rule), the court states: "This is not to

say that the trial court was required to hold an evidentiary hearing to ascertain the factual basis for

Mr. Keiswetter's guilty plea. Rule 11(f) permits the

trial judge to find the factual basis for the plea "in

anything" that appears in the record. An inquiry

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might be made of the defendant, of the attorneys for

the government and the defense, of the presentence

report when one is available, or by whatever means

is appropriate in a specific case." United States v.

Keiswetter, 860 F.2d 992, 996 (10th Cir. 1988), on

reh'g, 866 F.2d 1301 (10th Cir. 1989). The court went

on to find that while the defendant's statement in

the plea agreement that a factual basis exists,

"standing alone, may not be sufficient to constitute

`strong evidence' of Mr. Keiswetter's guilt under Alford, it seems appropriate for the trial judge to take

such a statement into consideration, particularly if

there was other evidence in the record that supported the conclusion that Mr. Keiswetter had the necessary state of mind for the crime of conversion." Id. at

997. Another 10th Circuit Case cites to Keiswetter

when stating: "Before entering judgment on a guilty

plea, the court must determine that there is a factual basis for the plea. The court may consider "anything that appears in the record" when making its

determination... Thus, Rule 11 does not require the

district judge to question the defendant as to the factual basis for a guilty plea; rather the rule simply

imposes an obligation on the judge to determine that

there is a factual basis for the plea." United States v.

Pearce, 399 F. App'x 361, 363 (10th Cir. 2010).

The plea paperwork in this case does state that

there is a factual basis and that the Defendant is

waiving the factual basis. The Court did inquire specifically of the Defendant regarding the elements of

the offense and the Court found that the Defendant

understood the elements of the offense of menacing

and was pleading guilty to those elements despite

the Defendant's statements that he had not commit-

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ted that offense. Particularly persuasive to the Court

is the acknowledgement by the Defendant through

counsel that he was entering into the agreement

with the full knowledge and understanding that he

was obtaining the benefit of a plea bargain. And, the

plea agreement itself was incredibly favorable, with

the dismissal of 5 cases, counts of violation of bond

conditions that had "no defense" and numerous other

charges, and a stipulated 1 year DOC sentence. Finally, the Record as a whole does include a warrantless arrest affidavit and a complaint both of which

provide a sufficient factual basis as to the crime to

which the Defendant pled.

Though the transcript of the providency hearing

itself is not ideal, the Record as a whole does provide

a sufficient basis upon which to determine that there

was a strong factual basis for the offense. Further, it

is clear from the providency hearing that the Defendant was well aware of the nature and benefit he

was receiving from the plea bargain. In fact, Mr.

Medina testified at the 35(c) hearing that his "dilemma" was that he was guilty of other things but

not the menacing, but the plea offer was to the menacing. His plea was knowing, and voluntary. Mr.

Medina testified at his 35(c) that no one "forced" him

to enter into the plea agreement. There was a factual

basis for the plea sufficient to meet the Alford requirements.

IV. CONCLUSION

This Court finds that the Defendant has not met

his burden. Specifically, the Court finds that the

representation by Mr. Christensen both met an objective standard of reasonableness and did not result

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in any prejudice to the Defendant (quite the contrary, he was the recipient of a very favorable plea offer). Further, the Court finds that there was no violation of the Defendant's due process rights with regard to the voluntariness of his plea. He entered his

plea to a charge to which he claimed innocence with

the full knowledge of the rights he had and the implications of such a plea. The Defendant's choice to

plead guilty was based on considerations related to

his desire to post bond and to avoid prosecution on a

number of other charges. The Record as a whole

supports the factual basis for this plea.

WHEREFORE, the Defendant's Motion for PostConviction Relief Pursuant to Colo. R. Crim. P. 35(c)

is DENIED.

SO ORDERED this May 22, 2019.

BY THE COURT:

/s/ Catherine J. Cheroutes

DISTRICT COURT JUDGE