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ADVANCE SHEET HEADNOTE

April 26, 2010

No.08SC884, Crumb v. People – Criminal Procedure – Judicial

Conduct – Judicial Participation in Plea Negotiations

The Colorado Supreme Court holds that the trial court

abused its discretion by denying the defendant’s motion to

withdraw his guilty pleas. A defendant may withdraw a guilty

plea by showing a fair and just reason for doing so. Under

Colorado law, a trial judge shall not participate in plea

negotiations. In this case, the trial judge gave the defendant

advice by saying “let me talk to you as a human being,” made a

tacit offer of leniency if the defendant accepted a plea

agreement, and stated that he was “not going to be a happy

judge” if the defendant did not agree to a plea deal. By making

these comments, the trial judge participated in plea

negotiations and stepped out of his role as a neutral and

impartial arbiter of justice. Accordingly, the defendant

demonstrated a fair and just reason for withdrawing his guilty

pleas, and the trial court abused its discretion by denying the

motion to withdraw the guilty pleas.

SUPREME COURT, STATE OF COLORADO Case No. 08SC884
101 West Colfax Avenue, Suite 800
Denver, Colorado 80202

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 06CA814

Petitioner:

James M. Crumb, Jr.,

v.

Respondent:

The People of the State of Colorado.

JUDGMENT REVERSED
EN BANC
April 26, 2010

The Noble Law Firm, LLC

Antony M. Noble
Lakewood, Colorado

Attorneys for Petitioner

John W. Suthers, Attorney General

Deborah Isenberg Pratt, Assistant Attorney General
Appellate Division, Criminal Justice Section
Denver, Colorado

Attorneys for Respondent

JUSTICE BENDER delivered the Opinion of the Court.

 I. Introduction

In this appeal, we review the court of appeals’ decision in

People v. Crumb, 203 P.3d 587 (Colo. App. 2008), which held that

the defendant was not entitled to withdraw his guilty pleas

based on the trial judge’s participation in plea discussions.

We reverse. We hold that the trial court abused its discretion

when it failed to permit the defendant to withdraw his guilty

pleas.

In this case, the trial judge stepped out of his role as a

fair and impartial arbiter by making participatory comments.

These comments appear to have influenced the defendant’s

decision to reconsider his earlier rejection of the offered plea

and his ultimate decision to plead guilty. The judge gave the

defendant advice, saying “let me talk to you as a human being,”

and then pressured the defendant to accept a plea agreement by

comparing the maximum sentence the defendant faced if convicted

with a potentially more lenient sentence if the defendant

accepted a plea agreement. The judge departed further from his

judicial role by telling the defendant that he was “not going to

be a happy judge” if no plea deal were reached. Given these

participatory comments, we hold that the trial court abused its

discretion by denying the defendant’s motion to withdraw his

guilty pleas. Accordingly, we reverse the court of appeals’

2
decision and remand this case to that court to be returned to

the trial court for proceedings consistent with this opinion.

II. Facts and Proceedings

In twelve different cases, the prosecution charged the

defendant James Crumb with approximately fifty counts of felony

theft, forgery, criminal impersonation, and offering a false

instrument for recording. The prosecution also sought enhanced

penalties under the Habitual Criminal Statute, section 18-1.3-

801, C.R.S. (2005).

The charges stemmed in part from alleged misconduct

beginning in 2000. Because numerous defense attorneys withdrew

from representing the defendant, the trial court pushed the

proceedings back until 2005. Ultimately, the trial judge

permitted the defendant to proceed pro se, appointed advisory

counsel to assist with the defense, and set trial in the first

case for Monday, October 24, 2005. On the Friday before trial,

the judge began a pretrial conference by asking if the parties

were going to trial. The prosecution said yes. The defendant

said yes.

Without prompting from either side, the judge initiated a

discussion concerning the status of plea negotiations and

confirming that, once the pretrial conference was over, all

offers by the prosecution would be withdrawn. The judge said:

3
 I know there’s been a lot of discussion about
dispositions in this case. I’m not going to interject
myself into that, except to say this. It’s my
understanding and I’m assuming [the prosecutor] will
confirm this, that if we go through the pretrial
conference and get ready for trial, all the offers are
off the table and things are done.

The defendant stated that he was ready to go to trial

because he felt that he had no choice. The judge then told the

defendant that he had two options: to take the plea offered by

the prosecution or to proceed to trial. The judge stated he did

not want to know the details of the offer: “I don’t even know

what [the offer] is and I don’t want to be told.” Then the

judge informed the defendant that in Monday's trial he faced

eight class-four felonies, each of which carried a maximum

sentence of six years. Referring to the habitual criminal

charges, the judge explained that if the defendant were

convicted, then the judge would have no choice but to sentence

the defendant to four times the maximum sentence for each

felony.

The defendant’s advisory counsel told the court that the

defendant would like more time to consider his decision, and the

court took a recess. Three hours later, the judge resumed the

pretrial conference. The defendant stated that he would accept

a plea bargain if the habitual crime counts were dismissed. The

judge responded by saying that he could not get involved in plea

negotiations.

4
 The prosecutor then told the court that the defendant was

unwilling to plead guilty and that the defendant had rejected

existing plea offers. Addressing the judge, the prosecutor

stated, “We’ve explored a number of options, Your Honor,

including disposition of some cases and not others, but

ultimately there is an offer on the table and it has not been

accepted.”

At this point the trial judge made several expository

statements directed at the defendant. He said that he was

talking to the defendant “more as a human being than as a judge”

and repeated what he had said earlier -- that the defendant had

a decision to make. The judge then reiterated his earlier

statement that he could exercise sentencing discretion only if

the defendant accepted a plea bargain. The judge’s statements

were as follows:

Let me just say this. This is more as a human being

than as a judge. You [have] a lot on your plate. I
understand it, but you’ve also had a lot of time to
think about it. It’s only fair that -- we took a lot
of time yesterday afternoon, and I’m trying to be
patient and I’m not being impatient now, but it is
unfair for me to do anything that makes [the
prosecutor] have to keep delaying his preparation. If
we’re going to go to trial, he’s got a right to
prepare for his case, just as you do. If you’re not
going to go to trial, that’s a different ball of wax;
but, you know, you’re facing significant -- you’re
facing the potential of significant time, Mr. Crumb,
either way. I mean, we understand that, but if -- if
there’s any discretion that can be exercised, and I’m
not promising you anything when I say this, that
discretion obviously exists in the context of a

5
 disposition. It will not exist if you are convicted
and then habitual criminal charges kick in. There is
just nothing. I’m rubber stamping what the
Legislature tells me to do at that point.

(Emphases added).

Immediately thereafter, the defendant and advisory counsel

engaged in an off-record discussion. When their exchange was

finished, advisory counsel stated, “I think we have a deal.”

The judge then directed the parties to return later in the day.

Before recessing, however, the judge stated, “I’m not going to

be a happy judge if the People tell me we don’t have a deal.”

The proceedings resumed at around 4:30 p.m. that day. The

defendant agreed to plead guilty to eight charges and to receive

a sentence between forty and ninety years in exchange for the

dismissal of the other cases and charges against him. The judge

conducted a providency advisement in which the defendant

confirmed that he reviewed the documents carefully and

completely and that he understood them. The judge found that

the defendant’s guilty pleas were made freely, voluntarily,

knowingly, and without coercion.

On December 9, 2005, forty-nine days after the pleas had

been entered, the defendant filed a motion to withdraw his

guilty pleas. He alleged that his pleas were “involuntary and

made without his understanding and informed consent.” The same

judge who accepted the guilty pleas heard arguments on this

6
motion in a hearing on January 6, 2005. At this hearing, the

defendant argued that he should be allowed to withdraw his plea

because he was not given enough time to evaluate the plea

agreement. According to the defendant, when he first received

the plea agreement, he told advisory counsel that he disagreed

with it and advisory counsel’s response was that the court would

be unhappy with this decision. The defendant said:

At about 4:40, advisory counsel . . . came down to the

court tank with the plea agreement, and at that time I
commented to him that I wasn’t in agreement to plead
guilty. And he commented back to -- his rebuttal was
-- the court was going to be unhappy with that, so we
began to review the plea agreement. And the moment
that I received the plea agreement in my hand, the
deputies came and said that I was wanted in court.

(Emphasis added). The defendant also said that he had been

intimidated by the process and had felt afraid to tell the judge

that he did not want to accept the offer. The judge replied, “I

was not then and I am not now angry at you, nor did I threaten

you in any way, shape, or form by anything I said.” The judge

denied the defendant’s motion to withdraw his guilty pleas and

continued the sentencing hearing to provide more time for

counsel to review the presentence report.

Immediately following this hearing, the judge recused

himself for reasons unrelated to this appeal, and a second judge

conducted the final sentencing hearing. The defendant submitted

a second motion to withdraw his guilty pleas, again alleging his

7
guilty pleas were “involuntary and made without [his]

understanding and informed consent.” 1 The second judge denied

this motion and sentenced the defendant to eighty years in the

Department of Corrections. The defendant appealed.

The court of appeals held that the judge’s comments

violated the proscription against judicial participation in plea

discussions. Crumb, 203 P.3d at 592. Nevertheless, the court

of appeals held that the error in this case was harmless because

the parties had been negotiating a multiple-case agreement for

several weeks; the “happy judge” comment was made on the

afternoon of the last day before trial was to start and after a

tentative agreement had been reached; the trial court remained

impartial and did not encourage a particular plea bargain; and

the trial court “merely explained” the difference between

discretionary sentencing and habitual criminal sentencing. Id.

Judge Román dissented in part because he believed that the

trial judge’s participation was not harmless. He noted that the

trial judge acted improperly by suggesting that he could

exercise discretion in the sentence if the defendant took a plea

bargain but not if the defendant went to trial and was

1
The defendant also alleged that the judge had a conflict of
interest because of a connection with one of the victims. The
court of appeals rejected this claim. Crumb, 203 P.3d at 592.
The defendant did not raise this issue in his petition for
certiorari, and therefore, we do not address it.

8
convicted. Id. at 594 (Román, J., dissenting). Given that a

trial judge has significantly more power than a defendant, this

suggestion left Judge Román with “grave doubt” as to the

fairness of the proceedings. Id. As a result, he thought the

defendant’s motion to withdraw his guilty pleas should have been

granted. Id.

We granted certiorari to review whether the defendant

should be allowed to withdraw his guilty pleas because of the

trial judge’s participation in plea discussions. 2

III. Analysis

A. Standard of Review

The Colorado Rules of Criminal Procedure permit a defendant

to make a motion to withdraw a guilty plea before the sentence

is imposed. Crim. P. 32(d). The defendant has the burden of

establishing a “fair and just” reason for withdrawing a guilty

plea. People v. Chippewa, 751 P.2d 607, 609 (Colo. 1988). The

2
More specifically, we granted certiorari on the following
issue:
Whether a trial judge's participation in plea
discussions, in violation of section 16-7-302(1),
C.R.S. (2008), and Crim. P. 11(f)(4) is harmless error
where the defendant had rejected previous plea offers
and had only agreed to plead guilty after the trial
judge advised him of the sentence that would be
imposed if he were found guilty at trial and compared
that with the sentencing consequences of pleading
guilty.

9
trial court has discretion to determine whether the defendant

has demonstrated a fair and just reason. Id. We will not

overturn the denial of a motion to withdraw a guilty plea unless

the trial court abused its discretion. Id. at 607; People v.

Gutierrez, 622 P.2d 547, 559 (Colo. 1981); People v. Martinez,

188 Colo. 169, 172, 533 P.2d 926, 928 (1975). 3 To determine

whether the defendant has shown a fair and just reason for

withdrawing a guilty plea and whether the trial court abused its

discretion in denying the defendant’s motion, we consider a non-

exclusive list of factors, including whether the prosecution

would be prejudiced by the withdrawal of the guilty plea,

Chippewa, 751 P.2d at 611, whether the defendant promptly moved

to withdraw the guilty plea, id., and whether the defendant has

shown that “justice will be subverted” if the motion is denied,

3
The court of appeals cited two cases for the proposition that
Rule 11 violations are reviewed for plain or harmless error.
Crumb, 203 P.3d at 591 (citing Young v. People, 30 P.3d 202, 207
(Colo. 2001) and Dawson v. People, 30 P.3d 213, 216 (Colo.
2001)). The defendant argues that the harmless error doctrine
applies in this case, whereas the prosecution argues that the
plain error doctrine applies. We hold that neither doctrine is
appropriate here, as Crim. P. 32(d) motions are reviewed for
abuse of discretion. Chippewa, 751 P.2d at 609. The two cases
cited by the court of appeals involve Crim P. 35(c) motions for
post-conviction relief after a sentence has been imposed. Young
30 P.3d at 205; Dawson at 30 P.3d at 216. Here, the defendant
filed his motion to withdraw his guilty pleas before the trial
court imposed a sentence, so his motion is properly categorized
as a Crim. P. 32(d) motion. We are not aware of any Colorado
Supreme Court case that has engaged in either harmless or plain
error review of Crim P. 32(d) motions.

10
Maes v. People, 155 Colo. 570, 575, 396 P.2d 457, 459 (1964). A

defendant can show that justice will be subverted where, among

other reasons, “a plea was entered through fear, fraud, or

official misrepresentation or where it was made involuntarily

for some reason.” Id.

B. Participation in Plea Discussions

Both the Colorado Rules of Criminal Procedure and the

Colorado Revised Statutes provide that “the trial judge shall

not participate in plea discussions.” § 16-7-302(1), C.R.S.

(2005) (emphasis added); Crim. P. 11(f)(4) (emphasis added).

Both the rule and the statute carve out an exception for the

trial judge to participate when the parties arrive at a

tentative plea bargain and ask the trial judge to indicate

whether he or she will grant concessions contemplated by the

plea agreement regarding the charges or the sentence. § 16-7-

302(2); Crim. P. 11(f)(5).

Colorado’s prohibition against judicial participation in

plea negotiations is consistent with the American Bar

Association’s (ABA) Standards for Criminal Justice. ABA

Standards for Criminal Justice: Pleas of Guilty 127-28 (3d ed.

1999). 4 As part of this prohibition, Standard 14-3.3(c) directs

4
ABA Standard 14-3.3(d) parallels the Colorado rule:
A judge should not ordinarily participate in plea
negotiation discussions among the parties. Upon the
11
trial judges to refrain from influencing the defendant to accept

a particular offer: “The judge should not through word or

demeanor, either directly or indirectly, communicate to the

defendant or defense counsel that a plea agreement should be

accepted or that a guilty plea should be entered.” Id. at 128

(emphasis added). The rationale supporting this rule is that

“[it] protects the constitutional presumption of innocence, and

avoids placing judicial pressure on the defendant to compromise

his or her rights.” Id. at 134.

The judge plays an essential role to ensure the impartial

and objective administration of criminal justice. 5 When a judge

becomes involved in plea discussions, the judge is no longer a

judicial officer or a neutral arbiter. See United States v.

Werker, 535 F.2d 198, 203 (2d Cir. 1976), cert. denied, 429 U.S.

926 (1976). Judicial participation transforms the judge from a

request of the parties, a judge may be presented with

a proposed plea agreement negotiated by the parties
and may indicate whether the court would accept the
terms as proposed and[,] if relevant, indicate what
sentence would be imposed.
Id. at 128.
5
The Federal Rules of Criminal Procedure are similar to the
Colorado Rules of Criminal Procedure with respect to judicial
participation in plea discussions. See Fed. R. Crim. P. 11(c).
The federal rule provides that “[t]he Court must not participate
in these discussions.” Id. Because of the similarity between
the federal and Colorado rules, we draw support from federal law
in our analysis.

12
neutral arbiter to an advocate for the resolution the judge has

suggested to the defendant. When the judge does participate, he

or she brings to bear the full force of the judicial office.

United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 254

(S.D.N.Y. 1966); People v. Clark, 183 Colo. 201, 203, 515 P.2d

1242, 1243 (1973). Because of the disparity in power between

the defendant and the judge, judicial participation in plea

negotiations undermines the fundamental fairness of the

proceedings. Clark, 183 Colo. at 203-04, 515 P.2d at 1243.

Hence, numerous jurisdictions have ruled that a judge cannot

take certain actions, such as threaten a defendant with a more

severe sentence if the defendant refuses to plead guilty, id.,

183 Colo. at 203, 515 P.2d at 1242-43; make a tacit offer of

leniency, even if that offer is accompanied by caveats, see,

e.g., United States v. Baker, 489 F.3d 366, 375 (D.C. Cir.

2007); compare the potential consequences of pleading guilty

versus going to trial, United States v. Cano-Varela, 497 F.3d

1122, 1133 (10th Cir. 2007); or become a legal advisor to the

defendant, Cano-Varela, 497 F.3d at 1134; see also United States

v. Bradley, 455 F.3d 453, 462 (4th Cir. 2006) (finding error

where the trial court, among other comments, advised the

defendants they might “be better off pleading to the

indictment”).

13
 That being said, so long as the judge remains impartial,

the rule against judicial participation must not be applied so

rigidly as to interfere with the everyday operations of the

courts. See United States v. Frank, 36 F.3d 898, 903 (9th Cir.

1994) (“The rule against judicial participation in plea

bargaining protects the parties against implicit or explicit

pressure to settle criminal cases on terms favored by the judge.

It does not establish a series of traps for imperfectly

articulated oral remarks.”). A judge may make observations

about the evolving legal posture of a case and may inquire as to

whether parties wish to consummate a plea agreement. People v.

Venzor, 121 P.3d 260, 264 (Colo. App. 2005). In addition, a

judge may make case management decisions without violating the

rule against judicial participation in plea negotiations. Cano-

Varela, 497 F.3d at 1132-33; United States v. Cannady, 283 F.3d

641, 645 (4th Cir. 2002); see also People v. Jasper, 17 P.3d

807, 814 (Colo. 2001) (affirming a trial court’s decision to

reject a plea agreement because it was outside the plea-cutoff

deadline). Consistent with the purposes of the rule, a judge

may explain to the defendant that he or she has a decision to

make and may impose a deadline for making that decision, but the

judge cannot influence the defendant to accept or reject a

particular plea bargain.

14
 C. Application

We next address the trial judge’s conduct in this case. As

we explain, the trial judge alternated between being an

impartial observer and being an active participant in the plea

negotiations.

At the beginning of the pretrial conference, the judge told

the defendant that he had a decision to make and that he could

not keep delaying the proceedings because the trial was

scheduled to start the following Monday. In addition, the judge

reiterated that he could not get involved in negotiations and

voiced his desire to remain ignorant of what the plea offers

entailed. The judge also commented that he had no power to

force the prosecution to offer certain concessions, such as

dropping enhanced penalties under the habitual criminal statute.

Based on these comments, we conclude that, at times, the judge

attempted to remain impartial and move the case forward within

the bounds of section 16-7-302 and Crim. P. 11(f)(4).

At other times, however, the judge stepped out of his role

as a fair, neutral, and impartial arbiter. For example, by

saying, “[t]his is more as a human being than as a judge,” the

judge removed himself from his judicial office and placed

himself in the position of a counselor.

The judge also gave legal advice to the defendant by

comparing the potential sentencing consequences of pleading

15
guilty with the consequences of going to trial. He indicated

that the defendant’s only hope for a lighter, discretionary

sentence would come if the defendant accepted a plea offer. The

judge stated he would not have any discretion if the defendant

did not accept a plea offer. 6 This statement implied that, if

the defendant were convicted of habitual criminal counts, then

the defendant would have faced a potential mandatory sentence of

192 years. “A defendant needs no reminder that if he rejects

the proposal, stands upon his right to trial and is convicted,

he faces a significantly longer sentence.” Gilligan, 256 F.

Supp. at 254. When faced with the stark contrast between

potential sentences, a defendant may be more susceptible to

influence from a judge. See id.; see also Cano-Varela, 497 F.3d

at 1124 (finding error when trial judge compared penal

consequences of pleading guilty versus going to trial).

The judge repeatedly emphasized that he could exercise

sentencing discretion if the defendant pleaded guilty, which

suggests that the judge was making a promise of leniency. The

judge stated: “if there is any discretion that can be exercised,

6
The judge’s comments are legally incorrect. A trial judge
retains some discretion to sentence a defendant to concurrent or
consecutive terms when the charges are supported by identical
evidence and multiple victims are involved. § 18-1-408(3),
C.R.S. (2005); People v. Montgomery, 669 P.2d 1387, 1391 (Colo.
1987).

16
and I’m not promising you anything when I say this, that

discretion obviously exists in the context of a disposition.”

The defendant could reasonably believe, despite the judge’s

comment that he was not promising anything, that the judge made

a gentleman’s agreement or was looking out for the defendant’s

best interests. See United States v. Baker, 489 F.3d at 375

(finding plain error where the trial judge repeatedly referred

to a “year and a day” sentence that he gave to another defendant

charged with a similar crime and stated, “I would probably be

just as consistent here”).

The judge further departed from his judicial role when he

said, “I’m not going to be a happy judge if the people tell me

we don’t have a deal.” One interpretation of this statement is

that the judge was communicating that he did not want the

defendant to continue delaying the proceedings. A different

interpretation is that the judge was exerting pressure on the

defendant to accept the prosecution’s offer, irrespective of the

terms of the offer and the wishes of the defendant. Whatever

the judge meant by these comments, however, is less important

than how those words could be perceived. See Werker, 535 F.2d

at 202 (“Regardless of the judge’s objectivity, it is the

defendant’s perception of the judge that will determine whether

the defendant will feel coerced to enter a plea.”). A person

hearing the judge’s statement could reasonably interpret that

17
statement as pressure to take the deal offered, or any deal for

that matter. At no time should a judge influence a defendant to

take any particular deal or indicate a preference for a plea

disposition rather than a trial. Hence, like the court of

appeals, we conclude that the trial judge committed error by

making participatory comments in plea negotiations.

We turn to whether the trial court abused its discretion in

denying the defendant’s motion to withdraw his guilty pleas. To

determine whether the defendant has shown a fair and just reason

for withdrawing a guilty plea and whether the trial court abused

its discretion in denying the defendant’s motion, we consider a

non-exclusive list of factors, including whether the prosecution

would be prejudiced by the withdrawal of the guilty plea,

Chippewa, 751 P.2d at 611, whether the defendant promptly moved

to withdraw the guilty plea, id., and whether the defendant has

shown that “justice will be subverted” if the motion is denied,

Maes, 155 Colo. at 575, 396 P.2d at 459.

The first two factors lean in favor of the prosecution in

this case. The prosecution would experience some prejudice by

having to prepare once again for trial and having to reschedule

witnesses to appear. Moreover, the defendant did not promptly

18
move to withdraw his guilty pleas. 7 He filed his motion forty-

nine days after he entered the guilty pleas. Cf. Chippewa, 751

P.2d at 611 (noting that the defendant “promptly” moved to

withdraw his guilty plea when he filed the motion within

seventeen days of receiving an unfavorable presentence report).

In contrast, the extent of the trial judge’s comments and

colloquy with the defendant undermines the fundamental fairness

of the plea bargaining process. The proscription against

judicial participation implicates the core function of the

judicial branch, which is to administer justice in a fair and

impartial manner. Werker, 535 F.2d at 203 (“Rule 11 implicitly

recognizes that participation in the plea bargaining process

depreciates the image of the trial judge that is necessary to

public confidence in the impartial and objective administration

of criminal justice.”). The trial judge’s comments appeared to

influence the defendant’s decision-making process. At the

beginning of the pretrial conference, the judge asked the

parties if they were going to trial on the following Monday.

The defendant said yes. The judge then raised the issue of plea

7
We note that the defendant’s motion was “timely” because he
made it before the sentence was imposed. Colo. R. Crim. P.
32(d); see also People v. Banks, 190 Colo. 295, 297, 545 P.2d
1356, 1357 (1976); People v. Hodge, 205 P.3d 481, 483-84 (Colo.
App. 2008).

19
negotiations. Later on in the proceedings, the prosecutor

observed that the defendant had rejected the plea offer, saying

“ultimately there is an offer on the table and it has not been

accepted.” After the defendant expressed his resolve to go to

trial, the judge gave the defendant advice “as a human being,”

made a tacit offer of leniency, and stated that he would be

unhappy if no deal were reached. These improper comments appear

to have influenced the defendant’s decision to reconsider his

earlier rejection of the offered plea and his ultimate decision

to plead guilty.

To allow this guilty plea to stand would run counter to the

fair and impartial administration of justice. Hence, we hold

that the defendant has shown a fair and just reason for

withdrawing his guilty plea and that the trial court abused its

discretion when it denied his motion to withdraw his guilty plea

under Crim. P. 32(d).

IV. Conclusion

Accordingly, we reverse the court of appeals’ decision and

remand this case to that court to be returned to the trial court

for proceedings consistent with this opinion.

20