Mandatory Period of Parole Within the Range of Sentence
In cases where the defendant is alerted as to the full range of penalties to which he could legitimately be exposed, but is not apprised of the consequence of mandatory parole, harmless error results when the term of imprisonment, combined with the mandatory period of parole, falls within the range of sentence that the defendant was at risk of receiving. Craig v. People, supra, 986 P.2d at 964. See also People v. Benavidez, supra.
Indeed, assuming a defendant has been advised of mandatory parole at the providency hearing, the Craig court concluded that, "because mandatory parole applies equally to stipulated sentences to the D.O.C. as well as those that are not stipulated," a trial court is not required to advise a defendant specifically of the period of mandatory parole when it reviews sentence concessions agreed to by the parties. Craig v. People, supra, 986 P.2d at 966.
In so doing, as we read it, the supreme court extended the scope of People v. Tyus, 776 P.2d 1143 (Colo. App. 1989).
There, a division of this court held that where the length of the defendant's prison sentence is left to the discretion of the sentencing court, an inadequate parole advisement is harmless if the period of incarceration actually imposed plus the parole period does not exceed the maximum prison sentence which the defendant was advised he or she could receive.
The Tyus court did not address whether the same rule would apply in cases in which the defendant's plea bargain included a stipulated sentence or a stipulated sentence cap.
Arguably, the Tyus rule would not apply in such cases because, in such circumstances, the defendant had bargained for a specific sentence and the terms of the bargain did not include the maximum term to which the defendant was otherwise at risk of being sentenced.
However, in Craig, the supreme court concluded that the failure to advise a defendant properly of the term of mandatory parole is harmless if the length of parole and imprisonment together does not exceed the total term of imprisonment "which the defendant was advised of and risked receiving." Craig v. People, supra, 986 P.2d at 966.
When the supreme court discussed the sentence which the defendant "risked receiving," it referred to the maximum sentence which the defendant was advised he could receive before entering into a plea bargain.