dissenting:
Although the majority ostensibly agrees that a guilty plea is subject to collateral attack for placing the defendant in jeopardy twice for the same offense only to the extent that the identity of the offenses appears on the face of the providency hearing record, it ultimately finds a violation for the reason that nothing on the face of the separate counts of manufacturing and possessing to which the defendant pleaded guilty indicated whether they involved the same contraband. This holding amounts to nothing less than a presumption of identity from an absence of specific allegations to the contrary. Because I consider this presumption to be irreconcilable with the Supreme Court's prohibition *134against developing an additional record to establish a double jeopardy violation, and because the record of the providency hearing in this case demonstrates the defendant's deliberate choice to plead guilty to separate charges of manufacturing a controlled substance and possessing a controlled substance, in exchange for the dismissal of numerous other drug-related charges, I respectfully dissent. |
As the majority notes, once a guilty plea has become final, a challenge to its validity is ordinarily confined to whether it was effectively counseled and voluntary.1 Maj. op. at 128; United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). A narrow exception exists where on the face of the record it appears that the court had no power to enter the conviction or impose the sentence, for reasons including the double jeopardy bar against entering multiple convictions for the same offense. Broce, 488 U.S. at 569, 575-76, 109 S.Ct. 757. By pleading guilty rather than forcing the government to prove the charges against him, however, the defendant waives any right to a separate evidentiary hearing to establish such a bar. Id. Even if guilty pleas to charges with facial allegations of distinct offenses could be shown in fact to violate the Double Jeopardy Clause, a collateral attack on jeopardy grounds is insufficient unless the identity of the offenses appears on the face of the record. See Taylor v. Whitley, 933 F.2d 325, 328 (5th Cir.1991).
Although the conspiracy indictments involved in Broce were sufficiently distinguishable by dates of commission and objectives that the defendants could not have proved their claim of a single conspiracy without actually ‘contradicting the indictments, the Supreme Court made clear that it was enough for denial of post-conviction relief that they could not prove their claim by merely relying on the indictments and the existing record. Broce, 488 U.S. at 576, 109 S.Ct. 757. Whether the charges to which a defendant pleads guilty are challenged as violations of the same eriminal proscription or as the same offenses only in the sense that the elements of one are necessarily included in the other,2 the record, on its face, must conclusively demonstrate that they are dupli-cative. See Dermota v. United States, 895 F.2d 1324, 1825-26 (11th Cir.1990) (no double jeopardy violation because separate counts of transporting and possessing unregistered firearms over several months were not facially the same transaction); United States v. Kaiser, 893 F.2d 1300, 1301-03 (11th Cir. 1990) (double jeopardy violation because specification of identical tax returns in charges made clear from the face of the indictments that false return counts were lesser included offenses of tax evasion counts). The fact that the charging documents and providency hearing fail to identify the separate acts or incidents from which facially distinct guilty pleas arise does not conclusively demonstrate that they charge the same offense and therefore that guilty *135pleas to both violate the Double Jeopardy Clause. See United States v. Makres, 937 F.2d 1282, 1286 (7th Cir.1991) ("The fact that the original Rule 11 inquiry does not demonstrate affirmatively that each check was negotiated at a different place and at a different time does not require another result.")
That the narrow exception to the bar to such collateral challenges does not extend to all convictions that might be the same or included offenses, but is limited to convie-tions that on the face of the pleas necessarily are the same offense, is clear from the very nature of, and policy permitting, guilty pleas. A guilty plea is an admission of guilt of a substantive crime, which can be entered only by the voluntary and intelligent choice of the defendant. Broce, 488 U.S. 563, 109 S.Ct. 757. The factual basis for a guilty plea, which is required for the defendant's benefit, may be waived by him if his plea is the result of a plea agreement. Section 16-7-207(@2)(f), 6 C.R.S. (2001); Crim. P. 11(b)(6). In fact, a defendant may plead guilty to an offense that he simultaneously claims not to have committed, if, in light of the evidence against him, it is tactically in his best interest to do so. North Carolina v. Alford, 400 U.S. 25, 27, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); People v. Birdsong, 958 P.2d 1124, 1128 (Colo.1998). A voluntary and intelligent guilty plea waives the process to which a defendant would otherwise be entitled and the defenses that he might otherwise raise, whether or not he is conscious of or intends that waiver. Broce, 488 U.S. at 570-73, 109 S.Ct. 757; Taylor, 933 F.2d at 320-30. He may not, however, plead guilty to an offense that does not exist or of which he cannot legally be convicted. Broce; Menma v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The narrow exception merely recognizes that although the defendant has waived any opportunity to separately prove it, his plea cannot stand if it is necessarily one that the court lacks the power to enter.
The defendant in this case pleaded guilty to separate counts charging two separate "acts" prohibited by section 18-18-405, 6 C.R.S. (2001)-possession and manufacture- and waived his right to a factual basis distinguishing them. When the legislature created the crime of "Unlawful distribution, manufacturing, dispensing, sale, or possession," now codified at section 18-18-405, it made clear that the crime was committed by virtually any unauthorized, knowing behavior with a controlled substance, including manufacturing it, selling it, dispensing it, distributing it (even without remuneration), or possessing it, or by inducing, attempting to induce, or conspiring with any one else to do any of these things. While knowingly doing any of these things with regard to a controlled substance constitutes the commission of the offense, the statute does not require as a legal matter that all such activity taking place within a specific time frame be treated as a single act or constitute a single offense. Furthermore, while it may be impossible as a logical or definitional matter to personally manufacture a controlled substance without, at least momentarily, possessing it, it is clearly possible to possess a controlled substance without having manufactured it. A charge of possession is therefore the same as, or necessarily included within, a charge of manufacturing only if the controlled substance that the defendant is charged with possessing is the same controlled substance that he is charged with manufacturing.
By acknowledging that a different case would be presented if the charges specified that the contraband possessed by the defendant came from a different source, maj. op. at 133, the majority apparently accepts as much but would shift the burden to the People3 to charge with sufficient specificity to *136preclude the possibility that a separate count in the same time frame could be read to charge the same or a lesser-included offense. In my view this broad rule presuming a double-jeopardy violation whenever separate counts charging facially different acts in the same time period could be construed as charging the same offense not only alters existing law but will work considerable mischief. It will presumably void, for instance, pleas to lesser-included forms of assaulting or menacing the same victim during the same time period as that covered by a plea to a greater offense, in the absence of language specifying that they actually arise from different incidents.
Unlike the majority, I would hold that in the absence of express allegations that the contraband manufactured by the defendant is also the subject of his possession charge, separate counts of possessing a controlled substance and manufacturing a controlled substance, without more, constitute "facial allegations of distinct offenses," Broce, 488 U.S. at 570, 109 S.Ct. 757, sufficient to support guilty pleas to each. By his voluntary and intelligent choice to enter pleas to each, a defendant waives any right to go beyond the face of the record and attempt to prove, as a matter of fact, that the drugs he manufactured and possessed were the same, and therefore that the charges arose from the same transaction. While purporting to rely on Broce, the majority actually stands Broce on its head. By presuming the very facts that are necessary to establish the identity of the charges, which Broce would bar the defendant from separately attempting to prove, the majority makes the defendant rather than the government the beneficiary of the limitation against developing evidence outside the record. In my opinion, this presumption misinterprets the holdings of the United States Supreme Court and runs counter to the beneficial purposes of guilty pleas by, in effect, creating technical pleading requirements that merely provide a windfall to defendants who have made a deliberate choice in their own best interests, at a substantial cost to the interests of justice.
I therefore respectfully dissent. I am authorized to state that Justice RICE joins in this dissent.
. Although the majority lists a number of rights that the defendant waives by pleading guilty and indicates that the court must advise the defendant of the rights he will waive if the court accepts his plea, maj. op. at 127-128 & n. 3, its reliance on People v. Wade, 708 P.2d 1366 (Colo.1985), for this proposition leads me to believe that it actually intends only that the advisement include the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 LEd.2d 274 (1969), and Crim. P. 11, and that compliance with Crim. P. 11 be deemed supportive of the conclusion that the defendant's plea was entered voluntarily and understandingly. See Wade 708 P.2d at 1369-70.
. While it may not be of particular significance to the question of former jeopardy, I do not agree with the majority that possession is properly characterized as a lesser included offense of manufacturing, even when both involve the same substance. They are actually alternate ways of committing the same crime, see § 18-18-405, and although the legislature subsequently reduced the penalty for merely possessing a controlled substance, it did so as a sentencing consideration for the same crime, rather than by creating a separate crime of possession. Depending upon the specific content of the charge and the evidence presented at trial, it may therefore become necessary, through interrogatory or some other mechanism, to distinguish a finding of possession from the other ways of committing the offense, but it is not a lesser included offense. See Rowe v. People, 856 P.2d 486 (Colo.1993) (because the legislature did not create separate offense of heat-of-passion assault, there is no offense to classify as either lesser included offense or lesser nonincluded offense, although single crime of first degree assault may have different sentences depending on mitigating factor).
. In what may be intended as a limitation on the requirement for facially duplicative charges to establish a double jeopardy violation, the majority relies on People v. Wade, 708 P.2d 1366, 1368 (Colo.1985), for the proposition that "[a] defendant seeking to set aside a prior conviction obtained as the result of a guilty plea must initially make a prima facie showing that the guilty plea was constitutionally infirm." Maj. op. at 132. To the extent that the court intends, as Wade indicates, that the burden of persuasion then shifts to the People to demonstrate that the plea is nevertheless not constitutionally infirm, it confuses the standards for precluding the admission of evidence of a prior plea for the purpose of establishing the defendant's guilt or enhancing *136his punishment for another offense, to which Wade referred, with those for actually vacating a guilty plea as unconstitutional in post-conviction proceedings, as the defendant attempts to do in this case. Unlike the former situation, which merely involves a challenge to the admissibility of evidence of a prior plea for a particular purpose, see Wright v. People, 690 P.2d 1257 (Colo.1984) (failure of People to meet their burden does not vacate plea or bar relitigation of same issue in other proceedings), we have held that a defendant who seeks to vacate a guilty plea in post-conviction proceedings bears the burden of establishing his claim by a preponderance of the evidence. See, eg., People v. McClellan, 183 Colo. 176, 178, 515 P.2d 1127, 1128 (1973) (cited favorably by the majority in the preceding sentence); see also People v. Malouff, 721 P.2d 159, 160 (Colo.App.1986). Even if I did not consider this articulation of the defendant's post-conviction burden to be erroneous, I do not believe that limitation of the defendant's obligation to a pri-ma facie showing could alter the requirement that the charges on their face be necessarily duplicative.