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People v. Duran11/12/1973
Appellant, Jose E. R. Duran, appeals from an order of the district court of Saguache County denying his motion under Crim. P. 35(b) for withdrawal of his pleas of guilty to the crimes of assault with a deadly weapon, assault with intent to commit murder, and two counts of kidnapping. He seeks relief in the alternative, in the event this Court affirms the trial court's denial of his 35(b) motion, requiring that the sentences imposed by the court relating to the kidnapping counts be ordered to run concurrently rather than consecutively. For the reasons hereinafter discussed, we affirm the denial of appellant's 35(b) motion, and remand for resentencing on the kidnapping counts.
For a better understanding of the issues before the Court, we review the history of the case.
On March 15, 1966, appellant was charged with five criminal counts, the four enumerated above and a fifth count of arson. Appellant, who is of Spanish descent and with a limited education, had difficulty understanding the English language. In view of this problem, he was advised of his rights in Spanish as well as in English. The trial court appointed Carlos Lucero, an attorney fluent in the Spanish language, to represent him.
At arraignment on April 1, 1966, Lucero indicated he had twice conferred with his client concerning the criminal charges, and pleas of not guilty and not guilty by reason of insanity were then entered. The court ordered that appellant be examined by a medical commission on his insanity plea. Medical reports later filed indicated appellant was sane. Thereafter, on June 6, 1966, Mr. Lucero advised the court that appellant wished to withdraw his pleas of not guilty and
to enter pleas of guilty to all charges except the arson charge. The court specifically inquired of appellant whether this was his desire. He replied affirmatively. The court then read the statute relating to each offense and the penalties prescribed therein. Mr. Lucero assisted in interpreting when necessary. As each statute was read, Lucero indicated that his client did understand. At the conclusion of the recitation, appellant was repeatedly asked by the court whether he persisted in his guilty pleas. Appellant said he did and added in his own words, "I'm guilty."
On July 8, 1966, the court conducted a providency hearing where witnesses testified concerning the events out of which the criminal charges arose. There was testimony by the victims concerning the appellant's drunken condition, his threats to kill, his assault with a gun, his shooting of one of the victims, and the kidnapping of two brothers. The court conducted a lengthy inquiry concerning the voluntariness of an alleged confession. Parenthetically, we note that the alleged confession was never admitted into evidence nor was it read or considered by the court.
At the conclusion of the hearing, because of evidence developed concerning appellant's condition of intoxication and irrational conduct displayed during the commission of the offenses, Mr. Lucero asked that he be allowed to withdraw the guilty pleas and to proceed to trial on the insanity plea. Briefs were filed and the court ultimately granted this request. A sanity trial to a jury was held on October 17, 1966, and the jury found appellant to be sane.
On January 3, 1967, appellant and his counsel requested leave to again enter pleas of guilty. Mr. Lucero explained:
"It is now the defendant's desire to change his plea in this case to guilty. The case has been discussed with the defendant thoroughly. I have explained to him the jur
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