dissenting.
I dissent. I believe the facts here are distinguishable from those in People v. Rael, 681 P.2d 580 (Colo.App.1984) which is relied on by the majority. Here, defendant’s attorney gave erroneous legal advice regarding the maximum sentence defendant could receive. In contrast, in Rael, the attorney gave the defendant an erroneous opinion as to the maximum sentence that would be imposed.
It is uncontroverted that defense counsel’s advice was that, if consecutive sentences were imposed, the maximum sentence that could be imposed would be 24 years. Defense counsel did not advise his client as to the possibility of an aggravated sentence.
I also disagree that People v. Rael is supportive of the majority opinion because no evidence of deliberate misrepresentation was presented. I would conclude that a negligent misrepresentation of the law constitutes ineffective assistance.
During the Crim.P. 11 proceeding, the court gave the proper advisement regarding the possible sentences in the presumptive range, the possibility of consecutive sentences, and the doubling of sentences if aggravating circumstances existed. However, defendant was not advised by anyone of the standards for imposing an aggravated sentence. Nor was he advised that, under the circumstances of his crimes, he was in jeopardy of receiving an aggravated sentence.
Therefore, I conclude that defense counsel’s advice would lead a reasonable lay defendant to believe that the court’s advisement regarding an aggravated sentence did not legally or factually apply to him.
I agree that, in certain respects, the district attorney’s testimony regarding the meeting which she attended with defense counsel, defendant, and defendant’s mother conflicted with defense counsel’s recollection of the meeting, and that the trial court found that the district attorney’s account of the meeting was more credible than that of defense counsel. However, the district attorney did not contradict defense counsel’s testimony that he consistently led the defendant to believe that the maximum consecutive sentence that could legally be imposed was 24 years.
The prosecutor testified that she told defendant that she would ask the court for the maximum sentence because of the aggravated nature of the facts. That one of the victims indicated that it would be appropriate that defendant receive 48 years would not, in light of the advice of his attorney, lead defendant to believe that he was exposed to a sentence of more than 24 years.
When a defendant claims he has received ineffective assistance of counsel, a court must determine whether counsel’s conduct so undermined the proper functioning of the adversarial process that the proceeding cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To prevail, the defendant has the burden of establishing: 1) that counsel’s performance was deficient in that it fell below the level of reasonably competent assistance; and 2) that the deficient performance prejudiced the defense, resulting in a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. People v. Cole, 775 P.2d 551 (Colo.1989).
Because there is a presumption of validity attached to a judgment of conviction, the burden is on the defendant in his Crim.P. 35(c) proceeding to prove both elements by a preponderance of the evidence. People v. Naranjo, 840 P.2d 319 (Colo.1992).
Although justice does not demand error-less representation, constitutional standards *895requiring effective assistance of counsel demand that attorneys must satisfy minimal standards of competency. A defendant relying on a legally trained representative to answer criminal charges is entitled to assume that the attorney will provide sufficiently accurate legal advice to enable the defendant to fully understand and assess the legal proceedings in which he is involved. People v. Pozo, 746 P.2d 528 (Colo.1987).
When evaluating a defendant’s claim of ineffective assistance based on omissions in advising a client, the trial court must judge the reasonableness of the attorney’s conduct on the basis of all of the factual circumstances of the particular case, viewed in light of the prevailing standards of minimally acceptable professional conduct. This inquiry must include an initial determination of whether a specific body of law is relevant to the circumstances of the client and the matters for which the attorney was retained. People v. Pozo, supra.
Here, the inquiry by the trial court should have been directed at determining whether defense counsel had a duty to inform the defendant of the potential imposition of aggravated range penalties. See People v. Pozo, supra. But, the trial court did not make such an inquiry. Rather, it concluded that defense counsel’s assistance fell within the range of competence as required in 1990 because counsel had arranged a meeting at which the defendant and his mother met with the district attorney to discuss aggravated range penalties. The trial court did not however, consider the advice given by defense counsel before this meeting, after this meeting, or after the providency hearing.
In my view, defense counsel did have a duty to inform the defendant of the possibility that sentences in the aggravated range might be imposed and his failure to do so was unreasonable under prevailing professional norms. See People v. Dillon, 739 P.2d 919 (Colo.App.1987).
The record shows that defendant, who was 19 years old at the time of the incident, had an extensive juvenile and adult criminal record. The record also reveals numerous references to the seriousness of the accident, the egregious conduct of the defendant prior to the accident, and to the fact that the district attorney intended to ask for the maximum sentence. These factors should have put defense counsel on notice that sentences beyond the presumptive range would be considered by the sentencing court.
I further conclude that defense counsel’s erroneous advice prejudiced the defendant. Defendant testified at the Crim.P. 35(c) hearing that he completely trusted the information about sentencing given to him by his attorney, that he did not understand the court’s advisement as it related to aggravated range penalties, and that he relied solely on the advice of his attorney in making his decision about entering the guilty pleas. Defendant also testified that he would not have entered the guilty plea had he understood that he faced a possible 48 years in prison. See People v. Garcia, 815 P.2d 937 (Colo.1991) Cert. denied sub nom. Colorado v. Garcia, 502 U.S. 1121, 112 S.Ct. 1242, 117 L.Ed.2d 475 (1992). (The proper standard for resolving the issue of prejudice in assessing a claim of ineffective assistance is whether there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty but would have proceeded to trial).
Hence, jn my view, both prongs of the Strickland test have been satisfied by a preponderance of the evidence. Accordingly, I conclude that defendant’s trial counsel did not render effective assistance.
Defendant also contends that his plea was not intelligent, knowing, and voluntary. Inasmuch as I conclude that defendant received ineffective assistance of counsel, I would also agree that the plea here must be vacated.
One of the requirements for entry of a constitutionally valid plea of guilty is that the defendant understand the possible penalty or penalties which could be imposed. Crim.P. 11(b)(4).
Here, defendant could not have completely understood the possible penalties because his attorney repeatedly gave him misinformation and failed to completely explain the entire range of penalties which could be imposed. The omissions in defense counsel’s advice rendered the pleas in this case constitutional*896ly infirm because they were not entered knowingly.
I would, therefore, reverse the conviction, permit the defendant to withdraw his plea, and remand for further proceedings.