dissenting.
While I agree that a defendant must voluntarily and intelligently waive his right to have a jury find any fact that increases his sentence beyond the statutory maximum, other than a prior conviction, I strongly disagree with the majority’s apparent understanding of what such a waiver entails. The record in this case is literally awash with evidence that the defendant calculatedly bargained for this precise plea, fully understanding and agreeing to this precise sentencing range, in order to avoid the risk of more serious consequences; and now, with deal in hand, he continues to haggle with the Court in hopes of gaining some additional advantage. Although the actual difference in sentences at issue here is relatively small, the majority applies a standard for waiver so exacting as to be out of reach for any pre-Blakely sentence. Because I believe the standard suggested by the majority is not only without legal support, but will also impact a substantial number of sentences, I respectfully dissent.
After reasoning that a voluntary, knowing, and intelligent waiver of jury sentencing is required, the majority summarily concludes that no evidence in the record supports an effective waiver by the defendant, and in fact, that a defendant sentenced before the United Supreme Court’s holding in Blakely v. Wash*1197ington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), could not possibly make an intelligent waiver of his constitutional right to jury sentencing. See maj. op. at 1196. The constitutional right to a jury determination of any sentence enhancement factor (and therefore the requirement for an effective waiver of that right), however, derives from the fact that a sentence enhancement factor “is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” Maj. op. at 1194 (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The law governing the entry of guilty pleas, and the concomitant waiver of the right'.to a jury trial, is not nearly so demanding with regard to the defendant’s knowledge of the precise elements of the offense to which he pleads.
The United States Supreme Court has long held that an effective plea does not require that a ritualistic litany of the formal legal elements of an offense be read to the defendant. Henderson v. Morgan, 426 U.S. 637, 644, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); see also Marshall v. Lonberger, 459 U.S. 422, 436-37, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). It is enough that the defendant was given real notice of the true nature, or substance, of the charge against him, as opposed to its technical elements. Henderson, 426 U.S. at 645, 96 S.Ct. 2253. And that determination must be made in the totality of the circumstances, including not only the entire record but also the presumption that defense counsel explained to the defendant the nature of the charge. Id. at 647, 96 S.Ct. 2253; see also People v. Drake, 785 P.2d 1257, 1268 (Colo.1990).
As the majority notes, the record in this case included not only a providency hearing but also a written plea petition, signed by the defendant in the presence of his counsel. The plea was entered pursuant to an agreement presented to the court. In exchange for pleading guilty to an added, lesser, class 6 felony, the defendant benefited by the dismissal of all pending charges, including a class 5 felony, with a potential six-year sentence, and two class 1 misdemeanors, with potential two-year sentences. In order to make possible a mutually acceptable plea, the defendant waived a factual basis for the added offense,' contrived for purposes of the plea. He therefore clearly was on notice of the critical elements of that charge.
The record indicates that the defendant was advised that by entering his plea he was giving up his right to a jury trial. He was advised of the elements of the offense and the possible penalties. Not only did the defendant, with the advice of counsel, expressly waive his right to a jury trial, but in his written petition, he expressly indicated his understanding and agreement that the court could sentence him to a term as long as 3 years, if it found extraordinary aggravating circumstances. While the defendant may have hoped for a lesser sentence, he clearly found it advantageous to accept conviction of a class 6 felony and a sentence as great as 3 years, in exchange for the dismissal of all of his other charges.
Although it offers no real explanation or support, the majority implicitly holds that admissions by the defendant of extraordinary aggravating facts or his accession to judicial fact-finding in sentencing could not be effective unless he knew of the jury trial right articulated in Blakely, and he understood the full extent of the right he was waiving. As already noted, an' understanding of such technical distinctions between the responsibilities of the jury and those of the court has never been required for an effective guilty plea. But with regard to future developments in the law in particular, the Supreme Court has warned against reallocation of the risks bargained for by the parties, solely because of their failure to anticipate those changes. Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (“[Ajbsent misrepresentation or other impermissible conduct ... a voluntary plea of guilty intelligently made in light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.”); see also United States v. Bradley, 400 F.3d 459, 464-65 (6th Cir.2005) (relying on Brady’s. rationale to reject defendant’s challenge to his waiver of appellate rights, contained in a guilty plea, in light of United States v. Book*1198er, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); United States v. Leach, 417 F.3d 1099, 1104 (10th Cir.2005) (holding that Blakely and Booker should not “negate waivers of other constitutional rights, such as the right to a trial by jury,” in reliance on Bradley); cf. United States v. Sahlin, 399 F.3d 27, 31 (1st. Cir.2005) (relying on Brady .rationale to uphold defendant’s agreement for sentencing under the mandatory guideline scheme, despite subsequent excision of mandatory provision in Booker).
With regard to a failure to disclose potential impeachment evidence, the Supreme Court has noted that the Constitution “does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor.” United States v. Ruiz, 536 U.S. 622, 630, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (noting that Brady recognized that a defendant’s failure to anticipate a change in the law regarding relevant punishments is one such misapprehension). The Court had previously characterized the plea in Brady as intelligent, despite later judicial decisions indicating that at the time of his plea, the defendant did not correctly assess every relevant factor entering into his decision, because “he was advised by competent counsel, was in control of his mental faculties, and was made aware of the nature of the charge against him.” Bousley v. United States, 523 U.S. 614, 619, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
Even though Isaacks may not have been able to anticipate that the law would soon entitle him to a jury determination of the easily established (and apparently undisputed) facts relied on by the sentencing court, such as the extent of his erratic behavior, the number of therapists he had seen and medications they had prescribed without success, and his history of drug abuse, that fact was inconsequential to his decision. There can be no doubt that he understood the charge to which he pled guilty and the penalty to which he was subjecting himself, and he voluntarily and intelligently bargained for those consequences because he considered them to his advantage. He clearly got the benefit of his bargain.
Because I believe the majority misapprehends the requirements of an intelligent guilty plea in this context and misapplies them to the record in this case, I respectfully dissent.