concurring:
I concur in the result but write separately to make clear my own reasons for not finding harmless the trial court's failure to advise the defendant of the length of his mandatory parole term.
In order for a guilty plea to be constitutionally effective, the record as a whole must reflect that the defendant was given sufficient notice of, among other things, the possible penalties. See Craig v. People, 986 P.2d 951, 963-64 (Colo.1999). A period of mandatory parole over and above the possible term of imprisonment to which the defendant could be sentenced has been construed to be a "direct consequence" of the resulting conviction, and therefore the length of such a mandatory parole term is one of the possible penalties of which the defendant must be made aware. Id. Even a failure to advise the defendant of the length of a mandatory parole term, however, does not render the plea unintelligent and therefore ineffective as long as the sum of the mandatory parole term and the term of years to which the defendant is actually sentenced does not exceed the maximum sentence he was advised that he risked receiving by pleading guilty. Id. at 964. Where the defendant is not made to suffer the burden of an undisclosed consequence, the failure to advise of the "correct and complete penalty" has been characterized as harmless. Id.
Guilty pleas may of course be entered as the result of plea agreements in which the prosecutor makes sentence recommendations or concessions. See § 16-7-301(2)(a), 6 C.R.S. (1999); Crim. P. 11(F)(2)(I); see also People v. Wright, 194 Colo. 448, 573 P.2d 551 (1978) (equating sentence "concessions" and "recommendations". These sentence concessions do not, however, alter the range of possible penalties to which the defendant may be sentenced for the particular offense to which he pleads guilty. The trial judge in every case must exercise an independent judgment in deciding whether to grant charge and sentence concessions, and even though the judge may initially concur, if he ultimately decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, the effect of that decision is merely to permit the defendant to withdraw his guilty plea. Section 16-7-802@)and(8); Crim. P. 11(f)(5); 82(d).
Unlike the majority, I read the record as demonstrating that the sentencing court never advised the defendant of the maximum sentence permitted by statute for his offense. Instead, it expressly told him that any sentence to the Department of Corrections would not exceed the sentence concession or *170"cap" of three years and further that the crime to which he was pleading "could have been" punishable by as many as six years. The combination of these two statements amounted to nothing less than an advisement that a six-year sentence would not be possible in the defendant's case. In the face of this advisement at the providency hearing, even the record as a whole could not evidence adequate notice to the defendant that by pleading guilty he risked total punishment of six years. ,
Because his two and one-half-year sentence to the Department of Corrections plus bis statutory two-year mandatory parole term exceeded the highest number of years of punishment the defendant was advised that he risked receiving by pleading guilty, the failure of the record as a whole to reflect any notice of the length of the statutorily mandated parole term could not be considered harmless. If, however, I understood the defendant to have been advised, as the majority does, "that the crime of first degree criminal trespass carried a maximum sentence of six years," see maj. op. at 168, I would find that his ultimate sentence, including mandatory parole, did not exceed the possible penalty he was advised that he risked receiving.
The majority opinion states that in assessing the extent of the defendant's risk in cases involving a guilty plea entered pursuant to a plea agreement, a stipulated maximum term of imprisonment "supplants" the statutory maximum term of imprisonment described by the trial court during the Crim. P. 11 advisement. -It therefore concludes that a failure to advise of a mandatory parole term will be harmless only if the term of years to which the defendant is sentenced and his mandatory parole term fall within the sentence stipulation. To the extent that the majority intends merely to expressly indicate that a defendant has not been advised, for purposes of this harmless error analysis, that he risks receiving a sentence by pleading guilty if that sentence is one that he is also advised he can avoid by moving to withdraw his plea upon sentencing, I agree.
In its analysis, however, the majority uses the terms "sentence," "incarceration," and "imprisonment" interchangeably. In my view, in an advisement about possible penalty ranges, terms like "sentence," "punishment," and "penalties," communicate something far different from a reasonable understanding of terms like "incarceration," and "imprisonment." For purposes of this harmless error analysis, the relevant question is whether the defendant actually receives a sentence outside the range of which he was advised. Therefore, whether a failure to adequately advise a defendant about a mandatory parole term is harmless depends, in my view, entirely upon the specific conditions of the plea agreement and the specific content of the advisement.
In Craig v. People, 986 P.2d 951 (Colo.1999), and Benavidez v. People, 986 P.2d 943 (Colo.1999), this court found that the specific plea agreements in those cases were not violated precisely for the reason that a sentence recommendation, concession, stipulation, or "cap" to a number of years in the Department of Corrections or prison could only be reasonably understood to refer to the number of years of incarceration the defendant could be made to serve. We held that such a plea agreement could not reasonably be understood to place any limitation on that portion of a sentence that is prescribed by statute and over which the sentencing court has no control. A defendant pleading guilty pursuant to such a sentence concession therefore eannot reasonably understand that he is at risk of receiving only the bargained-for sentence. Instead, a reasonable person in this position understands that only his risk of incarceration is limited by the sentence "cap" and that he may still be subject to some additional form of punishment, like mandatory parole, that is automatically required by statute as part of every sentence.
Rather than being "supplanted" by a plea agreement, an advisement purporting to advise the defendant about the maximum possible sentence for his offense can serve to put him on notice that the total punishment he risks by pleading involves more than incarceration. An advisement that is limited to the maximum possible "incarceration" or "prison" term, without more, is unlikely to change a defendant's reasonable understand*171ing of his risk if he is pleading pursuant to a stipulation to a lesser period of incarceration. However, an advisement in terms of a maximum "penalty" or "punishment" or "sentence," especially when given after acknowl-edgement of a "cap" on actual incarceration, or, as in this case, when given in conjunction with an advisement of a mandatory parole term of unspecified length, should be understood to put a defendant on notice that a mandatory parole term, not limited by his bargain, can extend to this greater period of punishment.
A defendant has been adequately advised of the possible penalties, and therefore the failure to specifically advise him of the length of a mandatory parole term is harmless, as long as his actual sentence, the total sum of his terms of incarceration and mandatory parole, does not exeeed the maximum punishment he was advised that he risked receiving. A stipulation to only one component of a defendant's sentence can never alone be determinative of that risk. A defendant's reasonable understanding of the punishment he risks receiving is clearly dependent upon both his plea agreement and his full advisement, including his advisement of the maximum sentence that is possible for his offense.
The question whether a violation of Rule 11 should be treated as harmless cannot be separated from the nature of the proceeding in which review is sought. The federal courts have drawn a clear distinction between violations of Fed.R.Crim.P. 11 that are purely formal and those that are variously described as "constitutional," or "jurisdictional," or as resulting in "a complete miscarriage of justice," or "a proceeding inconsistent with the rudimentary demands of fair procedure." See United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). For important reasons of finality and confidence in the integrity of judicial procedures, see id. at 784, 99 S.Ct. 2085, only the latter group of Rule 11 violations is subject to collateral attack by motion for post-conviction relief.
While this court has never expressly articulated the same distinction, it has similarly recognized that postconviction relief pursuant to Crim. P. 85(c) is limited to error of a certain type and magnitude. See People v. Rodriguez, 914 P.2d 230, 254-55 (Colo.1996) (constitutional error); People v. Crawford, 183 Colo. 166, 515 P.2d 631 (1973) (constitutional dimension); People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973) (constitutional magnitude). Likewise, we have regularly held that Crim. P. 11 will not be treated as a ritualistic litany or formula. See, e.g., People v. Drake, 785 P.2d 1257, 1268 (Colo.1990) (quoting Henderson v. Morgan, 426 U.S. 637, 644, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976)).
A providency hearing is designed to evidence the constitutional validity of guilty pleas. See People v. Leonard, 673 P.2d 37 (Colo.1983). While compliance with the requirements of Crim. P. 11 will therefore normally satisfy constitutional due process concerns, see People v. District Court, 868 P.2d 400 (Colo.1994), violations of the rule do not necessarily amount to a constitutional violation. At least since Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed2d 274 (1969), a debate has raged over the extent and nature of the advisement that is constitutionally required. Our failure to tailor our analysis of harmfulness as nearly as possible to include only deficiencies that actually affect the constitutional validity of a plea results in a windfall to uninjured defendants at considerable cost to the entire justice system.
I am reluctant to join any analysis of harmlessness that does not permit examination of the record as a whole and instead allows a defendant's stipulation to a term of imprisonment to supplant an advisement of his maximum possible sentence. I therefore specially concur in the judgment.