Peo v. Garcia

23CA0703 Peo v Garcia 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0703

Moffat County District Court No. 21CR121

Honorable Sandra H. Gardner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christina Garcia,

Defendant-Appellant.

ORDER AFFIRMED

Division IV

Opinion by JUDGE RICHMAN*

Navarro and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

K. Andrew Fitzgerald, Alternate Defense Counsel, Grand Junction, Colorado,

for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 Defendant, Christina Garcia, appeals the trial court’s order

denying her Crim. P. 32(d) motion without a hearing. We affirm.

I. Background

¶ 2 The prosecution charged Garcia with possession with the

intent to manufacture or distribute a controlled substance,

unlawful possession of a controlled substance, tampering with

physical evidence, child abuse, and a special offender count. The

case proceeded to trial, but on the second day, Garcia entered into

a plea agreement. She pleaded guilty to an amended count of

possession with intent to distribute in exchange for (1) the

dismissal of the remaining charges and two other cases, and (2) a

stipulated sentence of four years in the custody of the Department

of Corrections.

¶ 3 Three days later, Garcia’s counsel moved to withdraw her

guilty plea under Crim. P. 32(d). The motion alleged that Garcia

had sent the following email to counsel the day after entering her

guilty plea:

Okay this is very concerning I wasn’t properly

informed about the consequences of this plea

deal and about these charges this is not good.

And the prosecutor relied [sic] to the judge and

to me he did not change his P agreement after

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I got new charges he changed it after the judge

found no violations out of 17 in the discovery

violation motion hearing this is b*******.

It further alleged that Garcia “was, and still is, very confused about

the consequences of the guilty plea” and there were “fair and just

reasons” for allowing her to withdraw her guilty plea.

¶ 4 The trial court denied the motion without a hearing,

concluding, among other things, that the pleading “failed to make

even an initial showing . . . that there is a ‘fair and just reason’ for

the withdrawal of [the] plea” and was facially “insufficient to

support the relief requested.” The court sentenced Garcia pursuant

to the plea agreement.

II. Discussion

¶ 5 Garcia contends that the trial court abused its discretion by

denying her Crim. P. 32(d) motion without a hearing. We disagree.

¶ 6 Whether to grant a motion to withdraw a guilty plea is within

the discretion of the trial court and denial of such a motion will not

be overturned unless the court abused that discretion. People v.

Chippewa, 751 P.2d 607, 609 (Colo. 1988). To constitute an abuse

of discretion, the trial court’s ruling must be manifestly arbitrary,

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unreasonable, or unfair. People v. DiGuglielmo, 33 P.3d 1248, 1250

(Colo. App. 2001).

¶ 7 Crim. P. 32(d) permits a defendant to file a motion to withdraw

a guilty plea before their sentence is imposed. Kazadi v. People,

2012 CO 73, ¶ 14. But a defendant does not have an absolute right

to withdraw a plea. Id. Rather, to warrant withdrawal, a defendant

has the burden of establishing a fair and just reason for it and must

make some showing that denial of the request will subvert justice.

Id. at ¶¶ 14-15; Maes v. People, 155 Colo. 570, 575, 396 P.2d 457,

459 (1964). There is no requirement that the trial court hold an

evidentiary hearing on a Crim. P. 32(d) motion. DiGuglielmo, 33

P.3d at 1250 (trial court properly denied relief without a hearing

where the defendant failed to assert facts demonstrating a fair and

just reason for withdrawal); People v. Lopez, 12 P.3d 869, 872 (Colo.

App. 2000) (conclusory allegations were not sufficient to warrant a

hearing on a Crim. P. 32(d) claim).

¶ 8 Garcia’s self-described “bare-bones motion” provided the

following reasons for withdrawing her guilty plea: (1) she “wasn’t

properly informed about the consequences of her plea”; (2) she

“was, and still is, very confused about the consequences” of the

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plea; and (3) there were “fair and just reasons” for allowing her to

withdraw her plea.

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¶ 9 We perceive no abuse of discretion in the trial court’s

determination that these bare and conclusory allegations “failed to

make even an initial showing . . . that there [wa]s a ‘fair and just

reason’ for the withdrawal of [the] plea.” Garcia did not set forth

what consequences she was misinformed or confused about, and

did not state with any particularity that a reason — let alone a fair

and just one — existed for allowing her to withdraw her plea. Nor

did she make even the barest of allegations that justice would be

subverted by the denial of her motion. See Maes, 155 Colo. at 575,

396 P.2d at 459 (There must be some showing that justice will be

subverted “[t]o warrant the exercise of discretion favorable to a

defendant concerning a change of plea.”); see also Kazadi, ¶ 14.

¶ 10 We are not persuaded otherwise by Garcia’s reliance on People

in Interest of J.D., 2017 COA 156, ¶ 18, aff’d on other grounds, 2020

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The email quoted in the motion also appeared to complain about

the trial court’s ruling on a discovery issue and previous plea offers

extended by the prosecution. But the motion did not tether these

complaints to the request to withdraw Garcia’s guilty plea. Nor

does Garcia reference them on appeal.

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CO 48, for the proposition that “the law contemplates evidentiary

hearings on Rule 32(d) motions,” except in the rarest of cases.

True, the cited portion of J.D. states that Rule 32(d) motions “often,

but not always, require[] an evidentiary hearing.” Id. at ¶ 18. But it

offers no opinion on the circumstances that permit a court to

summarily deny such a motion. As noted, other authorities do, and

they control our analysis here.

III. Disposition

¶ 11 The order is affirmed.

JUDGE NAVARRO and JUDGE PAWAR concur.