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ADVANCE SHEET HEADNOTE September 9, 2019

No. 17SC614, Brooks v. People—Habitual Offender—Prior Convictions—Plea Advisement.

In this case, the supreme court considers whether a defendant’s prior guilty

plea to theft from a person was constitutionally obtained, such that it could be

used later to adjudicate the defendant a habitual offender. We hold that the

defendant’s prior guilty plea to theft from a person was constitutionally valid

because the defendant understood the charge to which he pleaded guilty. Because

the defendant was convicted of a relatively simple offense, had prior, relevant

experience with the criminal justice system, and was represented by competent

counsel who certified that the defendant was advised of all the critical elements of

theft from a person, the prior guilty plea can be used to adjudicate the defendant

a habitual offender. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 17SC614 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 13CA1750

Petitioner:

Kyle Brooks,

v.

Respondent:

The People of the State of Colorado.

Judgment Affirmed en banc September 9, 2019

Attorneys for Petitioner: Megan A. Ring, Public Defender Jud Lohnes, Deputy Public Defender Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General Christine Brady, Senior Assistant Attorney General Denver, Colorado

JUSTICE BOATRIGHT delivered the Opinion of the Court. ¶1 After a jury found Kyle Brooks guilty of two felonies, the trial court

adjudicated him to be a habitual criminal based on his prior felony convictions,

including his guilty plea to theft from a person. As a result, the court sentenced

him to twenty-four years in prison. Brooks now claims that his prior theft from a

person conviction is constitutionally invalid. Therefore, we must determine if the

record establishes by a preponderance of the evidence whether Brooks understood

the elements of theft from a person when he previously pleaded guilty. We

conclude that it does. Accordingly, we hold that Brooks’s prior guilty plea to theft

from a person was constitutionally valid, and we affirm the judgment of the court

of appeals on different grounds.

I. Facts and Procedural History

¶2 Brooks was convicted of two class 4 felony counts for victim tampering. The

prosecution also sought to adjudicate Brooks a habitual criminal under section

18-1.3-801, C.R.S. (2019), based on Brooks’s three prior felony convictions. Brooks,

however, asserts that one of those convictions, a 2010 theft conviction obtained

through a guilty plea, is constitutionally invalid. Therefore, we need to examine

the circumstances surrounding his guilty plea in that case.

¶3 In the 2010 case, the People charged Brooks with theft from a person after

he and an accomplice stole a purse; Brooks distracted the victim while his

accomplice grabbed the purse. Brooks pleaded guilty and waived a factual basis

2 for the crime. But both the charging document and the Rule 11 Advisement form

failed to include the requisite mens rea for theft from a person: the intent to

permanently deprive the victim of property. Additionally, the trial court did not

mention the specific intent element when accepting Brooks’s plea. The Rule 11

form, however, did include defense counsel’s signed certification to the court that

she had “discussed the facts and law applicable to this matter with [Brooks]

including the necessary culpable mental state, possible defense(s), and potential

penalties.” (Emphasis added.)

¶4 During the habitual criminal hearing in the present case, Brooks argued that

his 2010 theft conviction was constitutionally invalid and it could not serve as a

predicate felony for his habitual criminal adjudication. Specifically, he argued that

at the time he entered his guilty plea, he had not been informed that theft from a

person requires the specific intent to permanently deprive the victim of property.

The trial court here disagreed and instead found that Brooks understood what he

was pleading guilty to in the 2010 case based on the following: (1) he was

represented by competent counsel; (2) he asserted that he understood what he was

pleading guilty to; (3) he had previously pleaded guilty to misdemeanor theft; and

(4) the nature of the crime itself.

¶5 The court of appeals affirmed Brooks’s habitual criminal sentence,

concluding that the facts of the crime as alleged would have informed Brooks that

3 the particular theft in question was one where he intended to permanently deprive

the victim of property. People v. Brooks,

, __ P.3d __. Brooks then

filed a petition for certiorari review, and we granted review of three issues. 1

II. Standard of Review ¶6 The constitutional validity of a guilty plea is a question of law that we

review de novo. Sanchez-Martinez v. People,

(Colo. 2011). But

we defer to a trial court’s findings of fact unless they are unsupported by the

record.

III. Analysis

¶7 To determine whether Brooks’s guilty plea was valid, we first discuss the

requirements of a constitutionally valid guilty plea, including the need to establish

1 We granted certiorari to review the following issues: 1. Whether a defendant enters a constitutionally valid guilty plea where the charging document omits the specific intent element of the crime, the trial court recites the defective charging document during its elemental advisement, and defense counsel never advised the defendant of the mens rea element. 2. Whether, when the trial court fails to advise the defendant of a critical element of the crime to which he pleads guilty, knowledge of the omitted element may be imputed to the defendant based on [the] “nature of the underlying crime.” 3. Whether, when the trial court fails to advise the defendant of the specific intent element of the charge to which he pleads guilty, the error is susceptible to review under the constitutional harmless error standard.

4 that the defendant understood the crime to which he pleaded guilty. Next, we

clarify that, to ensure a defendant understands what he is pleading guilty to, a trial

court should explain the crime to a degree commensurate with the nature and

complexity of that crime. Then, we examine the record to determine if it

demonstrates by a preponderance of the evidence that Brooks understood the

charge of theft from a person when he pleaded guilty, and we conclude that it

does. Therefore, we hold that Brooks’s prior guilty plea for theft from a person

was constitutionally valid.

A. Law

¶8 A guilty plea is constitutionally valid when it has been made “voluntarily,

knowingly, and intelligently.” Bradshaw v. Stumpf,

(2005) (citing

Brady v. United States,

(1970)). To demonstrate that a plea is

constitutionally valid, “the record [must] affirmatively show the defendant’s

understanding of the critical elements of the crime to which the plea is tendered.”

Watkins v. People,

(Colo. 1982). The relevant mens rea is a critical

element of the crime. See

(listing specific intent as a critical element). If

a defendant wishes to challenge the constitutional validity of a guilty plea, he

“must make a prima facie showing that the guilty plea was unconstitutionally

obtained.” Lacy v. People,

(Colo. 1989). If the defense makes this prima

facie showing, then the prosecution can rebut it by establishing “by a

5 preponderance of the evidence that the conviction was obtained” constitutionally.

at 6–7.

¶9 When evaluating whether a conviction was constitutionally obtained, we

note that “no particular litany need be followed in accepting a tendered plea of

guilty” and that “the degree of explanation that a court should provide depends

on the nature and complexity of the crime.”

. We have previously provided

guidance on which types of crimes are relatively complex and which are relatively

easy to understand. See

(explaining that aggravated robbery and second-degree

murder are “understandable by persons of ordinary intelligence,” whereas crimes

such as conspiracy to commit burglary “require a greater showing of the

defendant’s understanding”). Therefore, what is necessary to establish a

defendant’s understanding of the charge against him depends on the crime’s

complexity.

B. Application

¶10 Brooks contends that he did not understand that he needed to have the

specific intent to permanently deprive the victim of her property when it was

taken. Brooks asserts that, without that understanding, his plea is constitutionally

invalid. To determine Brooks’s understanding of the charges against him, we look

at the record as a whole and focus on five aspects. First, we consider the nature of

the offense to which he pleaded guilty to see how difficult it is to understand the

6 elements of the crime charged. Second, we review the charging document to see

if it properly advised Brooks of the charge he was facing. Third, we examine how

the court advised Brooks during the plea hearing. Fourth, we consider Brooks’s

prior experience with the criminal justice system. Parke v. Raley,

, 36–37

(1992). Finally, because Brooks was represented by competent counsel, we factor

in defense counsel’s “assurance that the defendant has been properly informed of

the nature and elements of the charge to which he is pleading guilty.” Bradshaw,

.

¶11 First, theft is not an abstract concept. People steal property because they

want to keep, use, or sell it. Thus, the intent to permanently deprive the victim of

property is not difficult to understand because keeping the stolen property serves

as the motivation for taking the item in the first place. We have previously

concluded that crimes such as second-degree murder and aggravated robbery are

easily understandable by a layperson, see Lacy,

, and require less of a

showing to establish that the defendant understood the charge to which he

pleaded guilty. Certainly, theft falls safely within the sphere of those crimes, and

can be readily contrasted with more complicated crimes like conspiracy to commit

burglary.2 Because we conclude that the crime of theft from a person is relatively

2 As an illustration, consider the elements of theft and the elements of conspiracy to commit burglary, side by side. Upon doing so, it is clear that the elements of theft are relatively simple, whereas the elements of conspiracy to commit burglary 7 simple, the level of explanation required to demonstrate that Brooks understood

what he was pleading guilty to is relatively low.

¶12 Second, the charging document in this case was deficient because it omitted

the specific intent element of theft from a person:

COUNT 2-THEFT FROM A PERSON (F5)

That on or about April 17, 2010 in, or triable in, the County of Boulder, State of Colorado KYLE CHANCE BROOKS unlawfully, feloniously,

are more complicated and, in addition, also require a defendant to understand the elements of burglary itself: Theft Conspiracy to Commit Burglary 1. That the defendant, 1. That the defendant, 2. In the State of Colorado, at or 2. In the State of Colorado, at or about the date and place about the date and place charged, charged, 3. Obtained, retained, or exercised 3. With the intent to promote or control over anything of value of facilitate the commission of the another, crime of burglary, 4. Without authorization or by 4. Agreed with another person or threat or deception, and persons that they, or one or more 5. Intended to deprive the other of them, would engage in person permanently of the use or conduct which constituted the benefit of the thing of value. crime of burglary or an attempt to commit the crime of burglary, COLJI-Crim. 4-4:01 (2018). and 5. The defendant, or a co- conspirator, performed an overt act to pursue the conspiracy. COLJI-Crim. G2:05 (2018).

8 and knowingly took a thing of value, namely: a purse, from the person of [the victim]; in violation of section 18-4-401(1), (5), C.R.S.

Because of the lack of the specific intent element, we find that the charging

document failed to properly inform Brooks of all critical elements of the charge.

¶13 Third, the trial court advised Brooks in the same manner as the charging

document and did not mention the specific intent element. During the plea

hearing, the trial court read the charge verbatim from the charging document:

How do you plead with respect to that added Count 2 which charges on or about April 17, 2010, in or triable in the county of Boulder, state of Colorado, you unlawfully, feloniously, and knowingly took a thing of value, namely a purse, from the person of [the victim] in violation of section 18-4-401(1), (5), C.R.S.?

Because the court’s advisement suffered from the same flaw as the charging

document, we find that it too failed to inform Brooks of the critical element of

specific intent to permanently deprive the victim of property.

¶14 Fourth, we rely on Brooks’s prior experiences with the criminal justice

system to evaluate his understanding of his guilty plea to theft from a person; in

particular, we consider his previous guilty plea for misdemeanor theft. The trial

court found that Brooks pleaded guilty to theft just a year before his 2010 guilty

plea, and even though that theft was a misdemeanor, it had the same “specific

intent to permanently deprive” element as theft from a person. See § 18-4-401(1)(a),

(5), C.R.S. (2019). At the time he entered that guilty plea, Brooks was properly

advised—and he acknowledged that he understood—that he needed to have the

9 specific intent to permanently deprive the victim of the property taken to be guilty

of misdemeanor theft. He did not express any confusion or challenge that he had

the specific intent to permanently deprive the victim of property in the 2009 guilty

plea.

¶15 Finally, the trial court here expressly found that Brooks was represented by

competent counsel in the 2010 case, and Brooks stated on the record in 2010 that

defense counsel discussed the Rule 11 advisement form with him, and that he

understood the charge to which he pleaded guilty. That form, which Brooks and

defense counsel both signed, stated that defense counsel “discussed the facts and

law applicable to this matter with [Brooks] including the necessary culpable mental

state, possible defense(s), and potential penalties.” (Emphasis added.) Because we

have written assurance from competent counsel that Brooks understood what he

was pleading guilty to, we rely on it in determining whether Brooks made a

knowing, intelligent, and voluntary plea in accordance with constitutional

principles.

¶16 In considering the record as a whole, we agree with Brooks that he made a

prima facie showing that his theft from a person charge was constitutionally

invalid, but we conclude by a preponderance of the evidence that Brooks

understood the elements of the crime to which he pleaded guilty. When taken

together, the relatively simple nature of the crime of theft from a person, Brooks’s

10 guilty plea to misdemeanor theft just a year earlier, and defense counsel’s written

assurance that she explained to him the mens rea required to commit the offense,

convince us that Brooks understood what he was pleading guilty to at the time he

entered his plea. Accordingly, we hold that Brooks’s prior guilty plea for theft

from a person was constitutionally valid.

IV. Conclusion

¶17 We vacate the opinion of the court of appeals and affirm the judgment on

different grounds.

11