specially concurring:
Insofar as the majority holds that Mul-key’s guilty pleas were constitutionally infirm and could not serve as a basis for his further incarceration, I concur. I write separately because I believe that habeas corpus relief should be available to a person to secure his release from a constitutionally infirm three and one-half year sentence imposed by a municipal court when, as here, no remedy is available under the Colorado Municipal Court Rules (C.M.C.R.) to challenge the legality of his incarceration.
In the absence of a knowing, intelligent, and voluntary waiver of one’s right to counsel, no person who is financially unable to afford counsel may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless that person has been represented by counsel at trial or at an arraignment in which a guilty plea is tendered. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). An uncounseled guilty plea, in which an accused does not knowingly, intelligently, and voluntarily waive his right to counsel, cannot support a subsequent judgment of conviction and sentence to imprisonment.
Since the district court correctly ruled that the municipal court’s advisement of Mulkey was constitutionally defective, it follows that the judgment of conviction was no less constitutionally infirm, as was the ensuing sentence based on the constitutionally invalid conviction. The majority, *1234however, concludes that habeas corpus relief was not available because Mulkey had an effective remedy under C.M.C.R. 235. The majority reaches this conclusion by engrafting on C.M.C.R. 235 the same scope of postconviction relief available to an accused under Rule 35 of the Colorado Rules of Criminal Procedure. With this analysis I disagree.
The Colorado Rules of Criminal Procedure, including Crim.P. 35, are expressly inapplicable “to municipal ordinance and charter violations.” Crim.P. 54(a). Under C.M.C.R. 232(d), Mulkey could have made a motion to withdraw his guilty plea only before, not after, the imposition of sentence. Once sentence was imposed, the only remedy available to Mulkey was a motion, filed pursuant to C.M.C.R. 235, to correct an illegal sentence and to request resentencing.
Resentencing, however, would not redress the constitutional deprivation at issue here. That deprivation consisted in the fact that the municipal court sentenced Mulkey on the basis of constitutionally defective guilty pleas and an equally unconstitutional judgment of conviction. When no other form of relief is obtainable, legal relief through habeas corpus should always be available to redress an unlawful restraint of one’s liberty. See Marshall v. Kort, 690 P.2d 219, 222 (Colo.1984). Since the Colorado Municipal Court Rules did not permit Mulkey to file a postconviction motion to vacate the unconstitutional conviction which resulted in a three and one-half year sentence, Mulkey’s only available form of legal redress was a petition for writ of habeas corpus.
Although Mulkey filed his petition for writ of habeas corpus prematurely, in that he was then serving a sentence on a prior conviction, that sentence has since been completed. So far as the record shows, therefore, any additional confinement of Mulkey would be based on the sentence originating from the constitutionally defective guilty pleas and the constitutionally infirm judgment of conviction entered thereon. Relief short of total discharge is available through habeas corpus. Marshall, 690 P.2d at 222. Under the circumstances present here, I believe the appropriate disposition of this case is to affirm that part of the judgment vacating Mul-key’s sentence, and to order that the case be remanded to the district court with directions to return the case to the municipal court and order that the municipal court immediately rearraign Mulkey on the municipal ordinance violations in a manner consistent with his constitutional right to counsel and to conduct such further proceedings as necessary.
I am authorized to say that Justice KIRSHBAUM joins me in this special concurrence.