(1) The trial judge shall not participate in plea discussions.
(2) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere (no contest) in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, the trial judge may, upon request of the parties, permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the district attorney and defense counsel or defendant whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him. If the trial judge concurs but later decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty or nolo contendere (no contest).
(3) Notwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions.
Source: L. 72: R&RE, p. 223, § 1. C.R.S. 1963: § 39-7-302.
ANNOTATION
Annotator's note. Since § 16-7-302 is similar to repealed § 40-1-303, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.
Participation by trial judge in the plea bargaining process must be condemned. People v. Clark, 183 Colo. 201, 515 P.2d 1242 (1973).
Court may involve itself in plea discussions if such involvement merely involves observations regarding the evolving legal posture of the case or inquiries as to whether the parties still wish to consummate the agreement. People v. Venzor, 121 P.3d 260 (Colo. App. 2005).
When rejecting a plea agreement, a trial court must demonstrate on the record that it has actually exercised its discretion. A court's failure to make such showing is an abuse of discretion. People v. Jasper, 984 P.2d 1185 (Colo. App. 1999), rev'd on other grounds, 17 P.3d 807 (Colo. 2001); People v. Copenhaver, 21 P.3d 413 (Colo. App. 2000).
Court has discretion to reject a plea agreement, separately from the merits, on the basis that the parties tendered it in an untimely fashion. The trial court must provide adequate notice to the parties of the plea bargain cutoff date and must permit an exception to the rule for good cause. If a court rejects a plea for failure to conform to plea deadline, court need not necessarily consider the terms of the plea agreement proffered by the parties. People v. Jasper, 17 P.3d 802 (Colo. 2001).
Court must indicate position in plea-bargaining conference. During a plea-bargaining conference, the judge must indicate to the district attorney and defense counsel whether or not he will concur in the proposed disposition. Sober v. District Court, 197 Colo. 250, 592 P.2d 400 (1979).
When the trial judge couples his intervention into plea negotiations with threats of a longer sentence if the defendant goes to trial and is found guilty, he has attempted to use his office to force the defendant to waive his right to a jury trial or be penalized for exercising this constitutionally guaranteed right. People v. Clark, 183 Colo. 201, 515 P.2d 1242 (1973).
Defendant's motion to withdraw guilty plea must be granted where trial judge participated in plea negotiations. Because trial judge stepped out of his role as a neutral and impartial arbiter of justice by advising defendant and making other inappropriate remarks to influence defendant to agree to plea bargain, defendant has a fair and just reason to withdraw his plea. Crumb v. People, 230 P.3d 726 (Colo. 2010).
Where no basis for disqualification of judge. In the context of a confidential plea-bargaining conference, conducted off-the-record and in chambers, and where the challenged statement by the court implies nothing more than the judge's belief that the proposed plea and sentence concessions would not do justice, there is no basis for disqualification. Sober v. District Court, 197 Colo. 250, 592 P.2d 400 (1979); People v. McGhee, 677 P.2d 419 (Colo. App. 1983).
Crim. P. 32(e) implements subsection (2). People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978).
Subsection (2) applies to "charge or sentence concessions" and not to cost concessions. People v. Fisher, 189 Colo. 297, 539 P.2d 1258 (1975).
In the context of plea agreements, "sentence stipulations", "sentence agreements", "sentence concessions", and other similar terms are nothing more than sentence recommendations that the trial court is free to accept or reject, including after the defendant's guilty plea. This section requires the trial court to exercise its independent judgment in deciding whether to accept or reject sentence concessions in a plea agreement, and allow the defendant, but not the people, to withdraw from a plea agreement when the trial court rejects a sentence concession after the defendant has pleaded guilty. People v. Mazzarelli, 2019 CO 71, 444 P.3d 301.
A sentence recommendation is a sentence concession whether or not the court approves or concurs. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978).
When a defendant enters a plea agreement that includes a recommendation for a particular sentence, the fact that the sentence is rejected by the court removes the basis upon which the defendant entered his guilty plea and draws into question the voluntariness of the plea. Chae v. People, 780 P.2d 481 (Colo. 1989).
A court is not bound to accept a prosecutor's sentence recommendations, and in fact, is statutorily mandated to exercise an independent judgment in deciding whether to grant sentencing concessions in plea bargain situations. People v. Smith, 827 P.2d 577 (Colo. App. 1991).
Trial court did not have to follow the plea agreement even if it is assumed that the imposition of a concurrent sentence in Denver was part of the agreement between defendant and the Moffat county prosecutor, and even if that agreement was binding on the prosecution in Denver. People v. Smith, 827 P.2d 577 (Colo. App. 1991).
Decision of judge should be independently reached. When a plea of guilty or nolo contendere is tendered or received as a result of a prior plea agreement, the trial judge should give the agreement due consideration; but notwithstanding its existence, he should reach an independent decision on whether to grant charge or sentence concessions. People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971).
But he should disclose basis for decision not to grant concessions. If the trial judge concurs in the proposed statement but the final disposition does not include the charge or sentence concessions contemplated in the plea agreement, he shall state for the record what information in the presentence report contributed to his decision not to grant these concessions. People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971).
Court retains jurisdiction over conditional plea agreements in criminal cases so approved at least until such time as the express condition has been satisfied. White v. District Court, 695 P.2d 1133 (Colo. 1984).
Plea may not be withdrawn because of a condition of probation. Defendant charged with attempted first degree sexual assault who pleads guilty to the lesser offense of third degree misdemeanor assault may be required to undergo a psychosexual evaluation as a condition of probation. People v. Fleming, 3 P.3d 449 (Colo. App. 1999).
Applied in Vigil v. People, 196 Colo. 522, 587 P.2d 1196 (1978); People v. Cunningham, 200 Colo. 303 614 P.2d 886 (1980); People v. Adams, 678 P.2d 572 (Colo. App. 1984); People v. Carpenter, 709 P.2d 72 (Colo. App. 1985); People v. Lucero, 714 P.2d 498 (Colo. App. 1985).