specially concurring.
I concur in the result reached by the majority in this case. However, although the Attorney General does not argue that the Curtis advisement should not be addressed on direct appeal, I would decline to address the validity of the Curtis advisement here because doing so is contrary to the procedure adopted by our supreme court in People v. Blehm, 983 P.2d 779 (Colo.1999).
The Curtis advisement is a procedural safeguard designed to preserve a defendant's right to testify and to ensure that any waiver of that right is voluntary, knowing, and intelligent. Blehm, 983 P.2d at 786. As such, the advisement is simply a means to an end, and a defendant's waiver of the right to testify could be in fact valid even where the Curtis advisement is defective. Id. at 792 (concluding that a defendant who alleges in a post-conviction motion that his waiver was invalid due to a deficient advisement is entitled to an evidentiary hearing to determine whether the waiver was in fact voluntary, knowing, and intelligent). To ascertain the validity of the waiver, it may be necessary to consider evidence not present in the original trial record. Id. Thus, the supreme court held that claims of an invalid waiver of the right to testify "may be addressed only in post-conviction proceedings." Id. at 797.
Here, it is undisputed that the trial court's Curtis advisement contained the essential elements identified in Blehm.4 However, defendant urges that the advisement was misleading to the extent that the court also informed him that the prosecutor could ask whether his prior felony convictions were obtained by a guilty plea or by a trial. Even assuming that this additional language incorrectly stated the law, the record on appeal does not reflect what effect, if any, that language had on defendant's choice not to testify. See People v. Brewer, 720 P.2d 596, 597 (Colo.App.1985) ("Since an accused's decision not to testify seldom turns on a single factor, we cannot assume that the adverse ruling [that a prior conviction could be used for impeachment] motivated defendant's decision not to testify.") (citing Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)).
The Blehm requirement that a Curtis claim must be raised in a post-conviction proceeding remedies the failure of most trial records to adequately address the validity of a defendant's waiver. Accordingly, defendant's Curtis claim should not be addressed here. See People v. Gibson, 203 P.3d 571, 574 (Colo.App.2008) (holding that direct appeal is improper means to assert claim that additional instructions in Curtis advisement misled defendant and prompted his decision not to testify).
. Under Blelkim, an advisement concerning a defendant's right to testify must inform the defendant (1) that the right to testify exists; (2) that it is a personal right; (3) that if the defendant testifies, he or she will be subject to cross-examination; (4) that felony convictions may be disclosed; and (5) that those convictions can be used to impeach credibility. Blehm, 983 P.2d at 793.