concurring in part and dissenting in part:
I agree with the majority that the trial court committed no reversible error in denying defendant James Alvey Drake’s (the defendant’s) motions to suppress and motion for sanctions against the prosecutor. I agree as well that the 1973 and 1978 Kansas offenses that were used to support the defendant’s conviction on two habitual *1276criminal counts were constitutionally valid. I disagree, however, with the majority’s determination that the defendant’s prior plea of guilty to the 1982 Kansas offense, which provides the predicate for one of the three habitual criminal counts of which he was convicted, met constitutional standards. Because I conclude that the defendant’s prior 1982 conviction was constitutionally infirm, I would vacate the defendant’s increased sentence under section 16-13-101(2) of the Habitual Criminal Act, §§ 16-13-101 to -103, 8 C.R.S. (1978), and would remand for resentencing under section 16-13-101(1). Accordingly, I respectfully dissent.
I.
In Lacy v. People, 775 P.2d 1 (Colo.1989), cert. denied sub nom. Colorado v. Lacy, — U.S. -, 110 S.Ct. 350, 107 L.Ed.2d 337 (1989), this court held that two prior convictions were constitutionally infirm where the defendant had not been adequately advised of critical elements of the charges against him before entering pleas of guilty, and therefore the two prior convictions could not be used to support habitual criminal charges against the defendant. As we pointed out in Lacy, under Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), due process demands that a defendant receive “real notice of the true nature of the charge against him.” Lacy, 775 P.2d at 4 (quoting Henderson, 426 U.S. at 645, 96 S.Ct. at 2257). Although a trial court need not follow a set ritual in giving advise-ments, see, e.g., People v. Wade, 708 P.2d 1366, 1368 (Colo.1985), the record in a pro-vidency proceeding as a whole must affirmatively demonstrate that the defendant entered his guilty plea voluntarily and understandingly. See id.; Harshfield v. People, 697 P.2d 391, 393 (Colo.1985). To satisfy constitutional requirements, the trial court should explain the critical elements of the offense charged in terms that are understandable to the defendant. Watkins v. People, 655 P.2d 834, 837 (Colo.1982). Where the crime to which the plea is entered is relatively simple, reading the information to the defendant is an acceptable method of advising him of the nature of the offense charged. See, e.g., People v. Trujillo, 731 P.2d 649, 651 (Colo.1986); Wilson v. People, 708 P.2d 792, 797 (Colo.1985). Regardless of the complexity of the crime, however, the record must demonstrate that the defendant understood any mental state element of the crime to which he pled guilty. Lacy, 775 P.2d at 6; see also Harshfield, 697 P.2d at 394-95.
A defendant attacking the constitutionality of a prior conviction in habitual criminal proceedings must make a prima facie showing that the guilty plea was unconstitutionally obtained. Wade, 708 P.2d at 1368. In Colorado, pleas of guilty and nolo conten-dere must comply with Crim.P. 11 before they may be accepted by the trial court. In evaluating the validity of the 1982 Kansas plea at issue here, however, we need consider only constitutional standards and need not address the validity of the plea under the statutory and case law of Kansas. See Lacy, 775 P.2d at 4 n. 4; People v. Meyers, 617 P.2d 808, 814-15 (Colo.1980).
II.
In 1982, the defendant entered a plea of nolo contendere in a Kansas district court to the charge of habitually giving worthless checks. The defendant initially entered a plea of not guilty, later changed his plea to guilty, and finally changed his plea to nolo contendere at the sentencing hearing on his guilty plea.
The offense to which the defendant pleaded was defined by the statutes of the State of Kansas as follows:
Habitually giving worthless checks is:
(b) Giving two (2) or more worthless checks, as defined by section 21-3707, each drawn for less than fifty dollars ($50), where the total amount for which such worthless checks are drawn is fifty dollars ($50) or more and each of such checks was given on the same day.
Kan.Stat.Ann. § 21-3708.
Giving a worthless check is the making, drawing, issuing or delivering or causing or directing the making, drawing, issuing *1277or delivering of any check, order or draft on any bank, credit union, savings and loan association or depository for the payment of money or its equivalent with intent to defraud and knowing, at the time of the making, drawing, issuing or delivering of such check, order or draft, that the maker or drawer has no deposit in or credits with the drawee or has not sufficient funds in, or credits with, the drawee for the payment of such check, order or draft in full upon its presentation.
Kan.Stat.Ann. § 21-3707(1) (emphasis added).
“Intent to defraud” means an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.
Kan.Stat.Ann. § 21-3110(9).
On September 20, 1982, the defendant appeared with counsel in district court in Reno County, Kansas, and asked to change his initial not guilty plea of September 2, 1982, to guilty. The court asked the defendant if he remembered having appeared on September 2 before a different judge, and the defendant said that he did. The court then asked, “[d]o you recall [the judge] reading your rights to you with regard to pleading guilty, not guilty or no contest?” The defendant agreed that he did and acknowledged that at that appearance he entered a plea of not guilty. The court advised the defendant that he could plead not guilty, guilty or no contest and asked him how he wished to plead. The defendant replied, “guilty, sir.” The court and the defendant then engaged in the following colloquy:
THE COURT: Did you on the 20th day of July, 1981, deliver five checks to the Half Circle Inn, the total of such checks was more than Fifty Dollars? DEFENDANT: Yes sir.
THE COURT: At the time did you know that you did not have sufficient funds in the bank to pay those checks?
DEFENDANT: Yes.
THE COURT: Is the Half Circle Inn in Reno County?
DEFENDANT: Yes sir.
The court then accepted the plea of guilty. At no point in the proceedings was the defendant advised of the elements of the crime to which he was offering his plea, either by a reading of the charge or in any other manner. Nor was any mention made of the possible penalties for conviction.
On October 15, 1982, the defendant appeared once more before the Kansas court with counsel for further proceedings. The court expressed concern that a presentence report contained statements made by the defendant that he did not commit the crime and also expressed an unwillingness to sentence the defendant under such circumstances. The defendant then testified. Although his testimony was somewhat confusing, he clearly told the court that he did not write the checks upon which the charge was based and that he was not even in the state of Kansas at the time they were written. He stated, however, that the only way he could prove his absence at that time was to bring witnesses from Louisiana “and I can’t afford that and I, all I want[ ] to do is go ahead and plead guilty.” He also expressed concern that if he went to trial he “would be facing Nine to Thirty and I [don’t] want that.” His attorney then offered the explanation that in plea negotiations a prosecuting attorney advised the defendant that if he were found guilty the prosecutor “would request the institution of the habitual criminal act for sentencing.” The court then asked the defendant to decide how to plead, to which he replied that he wanted to keep his plea of guilty and get it over with. However, when the court again told the defendant he could withdraw his plea and asked if he wished to do so, his attorney requested and received permission to confer with the defendant before he made his decision.
After the conference the attorney told the court that the defendant wished to plead no contest. The court then allowed the defendant to withdraw his plea of guilty and told the defendant of his pleading options. The defendant pleaded no con*1278test. The court then sought assurance that the defendant understood the significance of a no contest plea, stating:
THE COURT: A plea of no contest means that you would simply, you don’t admit the crime but you do not deny it, therefore I would simply ask [the prosecutor] what the facts would show and based solely upon what he tells me I would decide whether you are guilty. If you violently disagree with what he has to say you don’t get an opportunity to say so, you must stand there silently and listen to him.
A: Yes sir.
THE COURT: The chances are ninety-nine point nine percent that you would be found guilty, do you understand that?
A: Yes sir.
THE COURT: So, has anyone made any threats to you in order to force you to plead no contest?
A: No sir.
THE COURT: Has anyone promised you anything good would happen if you did? A: No sir.
THE COURT: Are you doing so voluntarily?
A: Yes sir.
THE COURT: And are you doing so after discussing the matter with [your attorney]?
A: Yes sir.
The court then asked the prosecutor to state what the evidence would show. The prosecutor replied:
The evidence would be, your Honor, that ... Wanda Cape, the owner of the Half Circle Inn [received] checks purportedly written by James Drake and given to the Half Circle Inn in South Hutchinson, Reno County, Kansas, dated July 20th, 1981, in the amounts of $20.00; $40.00; $29.00; $25.00 and $40.00. And ... checks ... dated the 21st of July, 1981, issued to the same tavern at the same location in the amounts of $40.00; $25.00; $50.00 and $40.00. Wanda Cape would testify that she' could personally identify the defendant, James Drake as the person who passed those checks ... and that none of them were preexisting debts ... and all the checks were dishonored both times for the reason that there was insufficient funds in the account to pay the checks....
Without further inquiry of the defendant, the court found the plea to have been voluntarily and intelligently entered, found the defendant guilty of habitually issuing worthless checks, and proceeded immediately to sentencing.
At no point in the proceedings on September 20 or October 15 was the defendant advised of the elements of the offense or the possible penalties for conviction. The majority relies on the September 20 hearing to establish an advisement of the elements of the offense. There was nothing in the colloquy between the court and the defendant on that date, however, that would inform the defendant that the court’s questions were intended to cover a comprehensive list of the elements of the crime with which he was charged. In fact, they did not, for one element of the habitually giving worthless checks charge is specific intent to defraud and another is that each of the checks involved must be for an amount less than fifty dollars. The defendant was not informed at either of the providency hearings that the specific intent to defraud is an element of the offense.1 See Harshfield, 697 P.2d at 395 (“The basic distinction between crimes involving intent and crimes requiring only a voluntary act cannot be dismissed as ineon-*1279sequential in assessing whether a plea of guilty was entered knowingly.”).2
The majority states that “[t]he defendant's admissions to the court of the acts he committed demonstrated his knowledge of the elements of habitually giving worthless checks.” Maj. op. at 1271. This simply does not follow. A defendant’s admission to committing a certain act, even where his description of the act amounts to an admission of some or all of the requisite elements, does not imply a recognition on the defendant’s part that were he not to plead guilty, the prosecution would have to establish each of those elements beyond a reasonable doubt. Also, as noted above, the court’s questions did not include the element of specific intent to defraud. “[A]n inquiry by the court into whether the defendant understands the nature of charges against him is of utmost importance in connection with charges requiring proof of specific intent.” Lacy, 775 P.2d at 6. On October 15, the date the nolo con-tendere plea was offered and accepted, the court did not advise the defendant of the elements of the offense in any way even though the defendant denied committing the crime.
Moreover, the court never advised the defendant of the possible penalties1 for the offense to which he was pleading.3 This court has frequently held that the volun-tariness of a guilty plea turns in part upon whether the defendant understood the consequences of entering such a plea. See, e.g., People v. Hrapski, 718 P.2d 1050, 1055-56 (Colo.1986); Wade, 708 P.2d at 1368. The Colorado Court of Appeals has ruled that a guilty plea was involuntary under Crim.P. 11, and therefore could not serve as a basis for enhanced punishment under Colorado’s habitual criminal offender statute, where the defendant was not fully apprised of the potential penalties for the offense. See People v. Sutka, 713 P.2d 1326 (Colo.App.1985), cert. denied (Colo. Feb. 24, 1986).
The majority rejects as well the defendant’s claim that he should have been advised that he could subpoena out-of-state witnesses at the state’s expense, holding that due process does .not require a court to inform the defendant of every conceivable constitutional right that might be waived by a guilty or nolo contendere plea. See maj. op. at 35. While that may be true, this particular right had special application in this case, for the defendant stated to the court that to prove his innocence it would be necessary to bring witnesses to Kansas *1280from Louisiana and that he could not afford to do so. Under these circumstances, in order to assure that the defendant’s plea was voluntary, the court should have advised him specifically of his ability to subpoena such witnesses at state expense.
I conclude that the defendant presented a prima facie case that the 1982 Kansas conviction was constitutionally invalid. The prosecution did not rebut that case. For that reason, I would remand the case to the trial court for resentencing under section 16-13-101(1). Accordingly, I concur in part with the majority’s opinion but dissent to its holding that the 1982 Kansas conviction was constitutionally valid.
KIRSHBAUM, J., joins in this concurrence and dissent.
. To support its conclusion that the defendant understood the elements of the charge, the majority relies in part upon the fact that the court read the charge to the defendant at his first appearance, without counsel, on August 27, 1972, a month and a half and a number of court appearances before the October 15, 1982, provi-dency hearing at which his plea of nolo conten-dere was offered and accepted. I can discover no basis in logic or in precedent to support a conclusion that this evidences the defendant’s understanding of the elements of the charge when he offered his plea. Trujillo, 731 P.2d at 651, cited by the majority in this connection, was a case in which we held that a defendant had been adequately advised of the critical elements of a relatively simple and understandable charge by the reading of the information at the providency hearing.
. The majority relies heavily on the fact that the defendant was represented by counsel. The majority appears to indulge a presumption that counsel explained the charge to the defendant and then states that "the defendant has made no showing that his counsel failed to advise him of the elements of habitually giving worthless checks, or that, in the absence of such advice, he did not understand the charge.” Maj. op. at 1271. This turns the proper burden on its head. The defendant must make a prima facie case that the plea was unconstitutionally obtained. Lacy, 775 P.2d at 6. That burden is satisfied when the defendant shows that the record as a whole does not affirmatively demonstrate that he understood the critical elements of the crime to which his plea was tendered. Id. at 4. We have never held that the fact that a defendant was represented by counsel is an adequate surrogate for an affirmative demonstration based on matters appearing in the record that the defendant understood the critical elements of the crime. To do so would contravene the standards established in a long line of our cases. See, e.g., Watkins v. People, 655 P.2d 834, 837 (Colo.1982) ("Even where the record shows defense counsel has given some explanation to his client of the count to which the plea of guilty is tendered, we have held that this showing by itself does not constitute the type of demonstration sufficient to justify the conclusion that the defendant knew the critical elements of the charge when the plea of guilty was entered.”); People v. Mason, Jr., 176 Colo. 544, 545-46, 491 P.2d 1383, 1383-84 (1971) (defense counsel’s explanation to the defendant of charge against him held insufficient to satisfy the constitutional requirement that a defendant understand the nature and elements of the charge before entering plea; guilty plea vacated).
. The majority states that "the record establishes that [the defendant’s] counsel explained the applicable sentence to him.” Maj. op. at 1271. In support of that assertion, the majority notes that ”[t]he record of the providency hearing establishes that the defendant’s attorney advised him that, if he were convicted after a trial, the state would seek to enhance the sentence by relying on Kansas habitual offender statutes_” Maj. op. at 1271 n. 12. This is the only advice about the applicable sentence that appears in the record.