concurring in part and dissenting in part:
In this case, Edward Wieder was convicted of two counts of second degree assault, § 18-3-203(l)(f), 8 C.R.S. (1978 & 1985 Supp.), and was adjudged a habitual criminal based upon the jury’s determinations that he had been previously convicted of two felonies, see § 16-13-101, 8 C.R.S. (1985 Supp.). He was sentenced to imprisonment for a term not less than twenty-five nor more than twenty-seven years. The majority opinion upholds the convictions and sentence. I agree with parts I, II and III of the majority opinion sustaining the convictions for second degree assault. I respectfully dissent to part IV of that opinion upholding the use of Wieder’s prior conviction of conspiracy to commit second degree burglary, which was based upon his plea of guilty, to constitute part of the basis for his adjudication as a habitual criminal in the present case. Therefore, I would reverse the habitual criminal adjudication and remand the case for resentenc-ing on his two second degree assault convictions within the range of penalties prescribed for those offenses.
The habitual criminal statute involved here, section 16-13-101(1), provides for increased punishment for conviction of a felony for which the maximum penalty prescribed by law exceeds five years if within ten years of the date of commission of the offense the accused has been twice previously convicted of a felony. One of the convictions upon which the habitual criminal charges were predicated in the present case was a conviction for conspiracy to commit second degree burglary, entered by the Denver District Court in 1976 based upon Wieder’s guilty plea. In this appeal, as in the trial court, Wieder contends that his plea of guilty resulting in the 1976 conviction was constitutionally invalid because the trial court did not adequately advise him of the nature and elements of the charge before accepting the plea.
This court has stated that “[a] prior conviction obtained in violation of a constitutional right of the accused cannot be used in a subsequent criminal proceeding to enhance punishment.” Watkins v. People, 655 P.2d 834, 837 (Colo.1983). If the prior conviction is based on a guilty plea, the record must establish that the plea was voluntarily and understandingly made. Id. A plea cannot be made voluntarily and understandingly unless the defendant understands the nature of the charge against him and the critical elements of the crime to which his plea was given. Harshfield v. People, 697 P.2d 391, 393 (Colo.1985). Compliance with Crim.P. 11(b) is an indication that the trial court has accepted a constitutionally valid plea of guilty. People v. Lesh, 668 P.2d 1362,1367 (Colo.1983). When Wieder entered his guilty plea in 1976, Crim.P. 11(b) required a trial court to determine, among other things, that the plea was voluntary on the defendant’s part and that the defendant understood the nature and elements of the offense to which *401he was pleading, the right to trial by jury and the possible penalty. Crim.P. 11(b), 7 C.R.S. (1973).
In a habitual criminal proceeding, a defendant who contends that his prior conviction was constitutionally invalid must make a prima facie showing that the plea supporting the conviction was unconstitutionally obtained. Watkins v. People, 655 P.2d at 837. A prima facie showing consists of “evidence which, when considered in a light most favorable to the defendant with all reasonable inferences drawn in his favor, will permit the court to conclude that the defendant’s plea of guilty was not understandingly made.” Id. The defendant can make a prima facie showing by presenting unrebutted testimony that no advisement or an inadequate advisement was given to the defendant in the proceeding in which he entered his guilty plea. Crocker v. Colorado Department of Revenue, Motor Vehicle Division, 652 P.2d 1067, 1071-72 (Colo. 1982). Once such a showing has been made, the prior conviction is not admissible in the habitual criminal proceeding unless the prosecution can establish by a preponderance of the evidence that the conviction was constitutionally obtained. Watkins v. People, 655 P.2d at 837.
During his trial in the present case, Wieder attacked the validity of his 1976 conviction for conspiracy to commit second degree burglary. Wieder testified that in connection with entering a plea of guilty to that conspiracy charge, he did not recall being advised of the elements of the charge against him, the possible penalty attendant to that charge, or his right to have an attorney or to bail. He also testified that he did not remember being asked whether his plea was free and voluntary. The following dialogue then occurred between Wieder and his attorney:
[Attorney]: Would you recall the judge asking you those questions?
[Wieder]: Yes, I would.
Q: And you are sure he didn’t?
A: I’m positive, yes.
On cross-examination, in response to leading questions, the defendant again affirmed that he could not remember being advised of his various constitutional rights. The trial court refused to suppress the prior conviction, stating that there had been an “insufficient showing to set aside or determine that the conviction cannot be used.”1
In my view, the testimony by the defendant, considered in the light most favorable to him, was sufficient to establish a prima facie case that the defendant’s plea was unconstitutionally obtained. See Crocker v. Colorado Department of Revenue, 652 P.2d at 1071-72. This testimony constituted the only direct evidence of the circumstances under which Wieder’s plea was given since a transcript of the hearing in which Wieder entered his plea was not available to the trial court in this case until after the trial had concluded.2 To rebut this prima facie case, the prosecution offered into evidence an exhibit that consisted of no more than certified copies of the information filed in the 1976 conspiracy to commit burglary case, and the judgment of conviction, sentence, and mittimus in that case. This exhibit contained nothing to indicate the content of the advisement that Wieder received before pleading guilty and *402nothing to rebut Wieder s own testimony that he was not advised of the elements or the penalty of the crime with which he had been charged, or of his constitutional rights to an attorney.
In addition to offering the exhibit described above, the prosecution argued that Wieder’s testimony consisted of no more than statements that he did not remember the contents of his advisement and thus that, applying the standards set forth in People v. DeLeon, 625 P.2d 1010 (Colo. 1981), Wieder had failed to make a prima facie case that his plea was unconstitutionally obtained. This argument fails on two counts. First, as already discussed, Wieder’s testimony was more definite on the issue of the inadequacy of his advisement than the prosecution characterized it to be. Second, People v. DeLeon does not require a conclusion that Wieder failed to make a prima facie case.
In DeLeon, the defendant attempted to attack the validity of two prior traffic offense convictions. The transcripts relating to the convictions had been destroyed, but the docket sheets for each of the two cases were received in evidence. The docket sheets indicated that the defendant had appeared in court, been advised of his rights, waived formal proof, and pleaded guilty. The defendant testified that he had not been represented by an attorney and that he could not remember being advised of the nature or the elements of the offense with which he was charged or of the effect of his plea. He further testified that he did recall being advised of the possible penalties and being told “something” about a jury trial. The trial court in DeLeon found that the docket sheets reflected that the defendant had been adequately advised and that his pleas had been entered after a knowing and full waiver of his rights. We held that the trial court’s findings were supported by the evidence and thus, could not be disturbed on review.
Unlike the defendant in DeLeon, Wieder testified not only that he could not remember being advised, but also that he was “positive” that he had not been advised of his rights. Furthermore, the exhibit offered by the prosecution in the present case contained none of the assurances of proper advisement that were found in the docket sheets in DeLeon. Thus the prosecution’s reliance on DeLeon is misplaced and does not suffice to rebut the prima facie case established by Wieder at the trial.
Because I believe that Wieder made a prima facie case that his prior conviction was obtained in violation of his constitutional rights and that the prosecution did not rebut that prima facie case by showing by a preponderance of the evidence that the plea was constitutionally valid, I would hold that the trial court should have suppressed the use of the prior conviction for conspiracy to commit second degree burglary. Therefore, I would reverse the defendant’s adjudication as a habitual criminal, which in part was based on the prior conspiracy conviction, and would remand for resentencing on the second degree assault convictions.
I am authorized to say that Chief Justice QUINN joins in this partial concurrence and dissent.
. The trial court also refused to suppress the prior conviction on the basis of ch. 190, sec. 3, § 16-5-402, 1981 Colo.Sess.Laws 926, 926-27, which purported to foreclose a defendant from collaterally attacking the validity of a conviction more than three years after the date of the conviction. We subsequently determined that this statute was unconstitutional in People v. Germany, 674 P.2d 345 (Colo.1983).
. Because the trial court did not receive the transcript until shortly before it issued its order denying Wieder’s motion for a new trial, the court and the parties were unaware during trial that Wieder had not been advised of the elements of second degree burglary at the plea hearing. Moreover, as the majority notes, the transcript shows that the trial judge gave the defendant no explanation of the nature or elements of the crime of second degree burglary in explaining the conspiracy offense. Under these circumstances I see no basis to conclude that the plea was voluntarily and understandingly made. See Harshfield v. People, 697 P.2d 391, 393 (Colo.1985); Watkins v. People, 655 P.2d 834 (Colo.1983).