NOTE: The governor signed this measure on . HOUSE BILL 13-1210 BY REPRESENTATIVE(S) Kagan, Fischer, Hullinghorst, Labuda, Levy, Melton, Rosenthal, Ryden, Salazar; also SENATOR(S) Steadman, Aguilar, Carroll, Giron, Heath, Hodge, Hudak, Kefalas, Kerr, Newell, Tochtrop, Todd, Ulibarri. Concerning appointment of legal counsel during plea negotiations for indigent adult defendants, and, in connection therewith, making an appropriation. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 16-7-301, amend (1); and repeal (4) as follows: 16-7-301. Propriety of plea discussions and plea agreements. (1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. He The district attorney should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for appointment of counsel because the defendant is not indigent or the charged offense does not include a possible sentence of incarceration or because the defendant refuses appointment of counsel and has not retained counsel. or except as provided in subsection (4) of this section. (4) (a) In misdemeanors, petty offenses, or offenses under title 42, C.R.S., the prosecuting attorney is obligated to tell the defendant any offer that can be made based on the facts as known by the prosecuting attorney at that time. The defendant and the prosecuting attorney may engage in further plea discussions about the case, but the defendant is under no obligation to talk to the prosecuting attorney. The prosecuting attorney shall advise the defendant that the defendant has the right to retain counsel or seek appointment of counsel. The application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant as provided in this subsection (4). Upon completion of the discussions, the prosecutor shall inform the court of whether a plea agreement has been reached, and: (I) If a plea agreement has been reached, the prosecutor shall inform the court of the terms of the proposed plea agreement and the recommended penalty. If the court determines that the proposed plea agreement is acceptable, the court shall, in addition to any other advisement required by law, advise the defendant of the right to a court-appointed attorney prior to acceptance of the defendant's plea. The court shall also advise the defendant prior to acceptance of the defendant's plea that the court exercises independent judgment in deciding whether to grant charge and sentence concessions made in the plea agreement and that the court may therefore sentence the defendant in a manner that is different than that discussed during the plea discussions. (II) If a plea agreement has not been reached and the defendant chooses to retain an attorney, or the defendant meets the requirements of section 21-1-103, C.R.S., the court shall appoint counsel and all discussions with the defendant outside of the presence of counsel shall cease. (b) After completion of discussions as described in paragraph (a) of this subsection (4), if counsel is retained by the defendant, or if counsel is appointed for the defendant, when it appears that the effective administration of justice will thereby be served, the prosecutor may engage in additional plea discussions with the counsel for the defense for the purpose of reaching a plea agreement. SECTION 2. In Colorado Revised Statutes, 16-7-207, amend (1) as follows: 16-7-207. Court's duty to inform on first appearance in court and on pleas of guilty. (1) At the first appearance of the defendant in court or upon arraignment, whichever is first in time, it is the duty of the judge to inform the defendant and make certain that he the defendant understands the following: (a) He The defendant need make no statement, and any statement made can and may be used against him or her. (b) He The defendant has a right to counsel. (c) If he the defendant is an indigent person, he or she may make application for a court-appointed attorney, and upon payment of the application fee he or she will be assigned counsel as provided by law or applicable rule of criminal procedure. except that, if the defendant is charged with an offense described in section 16-7-301 (4) (a), and, after conferring with the defendant pursuant to section 16-7-301 (4), the prosecutor files a written statement that incarceration is not being sought as provided in section 16-5-501, counsel will not be provided to the defendant. (d) Any plea he the defendant makes must be voluntary on his or her part and not the result of undue influence or coercion on the part of anyone. (e) He The defendant has a right to bail, if the offense is bailable, and the amount of bail that has been set by the court. (f) He The defendant has a right to a jury trial. (g) The nature of the charges against him the defendant. SECTION 3. In Colorado Revised Statutes, repeal 16-5-501 as follows: 16-5-501. Prosecuting attorney - incarceration - legal representation and supporting services at state expense. Except as otherwise provided, in any criminal prosecution for class 2 and class 3 misdemeanors, petty offenses, class 1 and class 2 misdemeanor traffic offenses, or municipal or county ordinance violations, the prosecuting attorney may, at any time during the prosecution, state in writing whether or not he or she will seek incarceration as part of the penalty upon conviction of an offense for which the defendant has been charged. If the prosecuting attorney does not seek incarceration as part of such penalty, legal representation and supporting services need not thereafter be provided for the defendant at state expense, and no such defendant shall be incarcerated if found guilty of the charges against him or her, but the defendant shall be subject to all alternatives available to the court under section 18-1.3-702, C.R.S., and to alternatives available to each municipality under its municipal ordinances for failure to pay fines and costs. SECTION 4. In Colorado Revised Statutes, 21-1-103, amend (2) introductory portion as follows: 21-1-103. Representation of indigent persons. (2) Except as provided in section 16-5-501, C.R.S., The state public defender shall represent indigent persons charged in any court with crimes which constitute misdemeanors and in which the charged offense includes a possible sentence of incarceration; juveniles upon whom a delinquency petition is filed or who are in any way restrained by court order, process, or otherwise; persons held in any institution against their will by process or otherwise for the treatment of any disease or disorder or confined for the protection of the public; and such persons charged with municipal code violations as the state public defender in his or her discretion may determine, subject to review by the court if: SECTION 5. Appropriation. (1) In addition to any other appropriation, there is hereby appropriated, out of any moneys in the general fund not otherwise appropriated, to the judicial department, for the fiscal year beginning July 1, 2013, the sum of $54,366 and 0.8 FTE, or so much thereof as may be necessary, to be allocated to the trial courts for the implementation of this act as follows: (a) $52,228 and 0.8 FTE for trial court programs for personal services; and (b) $2,138 for trial court programs for operating expenses. (2) In addition to any other appropriation, there is hereby appropriated, out of any moneys in the general fund not otherwise appropriated, to the judicial department, for the fiscal year beginning July 1, 2013, the sum of $30,125, or so much thereof as may be necessary, to be allocated to the courts administration division for courthouse capital expenses related to the implementation of this act. (3) In addition to any other appropriation, there is hereby appropriated, out of any moneys in the general fund not otherwise appropriated, to the judicial department, for the fiscal year beginning July 1, 2013, the sum of $3,710,909 and 37.1 FTE, or so much thereof as may be necessary, to be allocated to the office of the state public defender for the implementation of this act as follows: Personal Services $2,359,574 and 37.1 FTE Short-term Disability 4,017 Health, Life, and Dental 295,099 S.B. 04-257 Amortization Equalization Disbursement80,344 S.B. 06-235 Supplemental Amortization Equalization Disbursement 74,001 Capital Outlay Expenses 419,037 Leased Space/Utilities 389,893 Operating and Travel Expenses 79,566 Attorney Registration 9,378 SECTION 6. Act subject to petition - effective date - applicability. (1) Sections 1 through 4 of this act take effect January 1, 2014, and this section and section 5 of this act take effect September 1, 2013; except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within the ninety-day period after final adjournment of the general assembly, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2014 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor. (2) This act applies to misdemeanors, petty offenses, class 2 and class 3 misdemeanor traffic offenses, and municipal or county ordinance violations committed on or after the applicable effective date of this act. ________________________________________________________ Mark Ferrandino John P. Morse SPEAKER OF THE HOUSE PRESIDENT OF OF REPRESENTATIVES THE SENATE ____________________________ ____________________________ Marilyn Eddins Cindi L. Markwell CHIEF CLERK OF THE HOUSE SECRETARY OF OF REPRESENTATIVES THE SENATE APPROVED________________________________________ _________________________________________ John W. Hickenlooper GOVERNOR OF THE STATE OF COLORADO