     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                June 20, 2019

                                2019COA90

No. 16CA1944, People v. Hamm — Crimes — Uniform

Controlled Substances Act of 2013; Sentencing — Amendatory

Statutes — Retroactive Application

     A division of the court of appeals holds that the Uniform

Controlled Substances Act of 2013 does not apply retroactively and

the effective date language of the Act is unambiguous; a person

convicted of a crime who did not file a direct appeal may not seek a

postconviction remedy based on a “significant change in the law”;

and an attorney waives an argument by not presenting it to the

court after a hearing at which the court and the attorney

acknowledged that the argument was not properly before the court.
COLORADO COURT OF APPEALS                                        2019COA90


Court of Appeals No. 16CA1944
Arapahoe County District Court No. 11CR1851
Honorable F. Stephen Collins, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Charles Marcus Hamm,

Defendant-Appellant.


                              ORDER AFFIRMED

                                 Division IV
                        Opinion by JUDGE LIPINSKY
                       Román and J. Jones, JJ., concur

                          Announced June 20, 2019


Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Charles Marcus Hamm, appeals the district court’s

 denial of his request for an evidentiary hearing on his petition for

 postconviction relief (the Petition). Hamm contends that his trial

 counsel was ineffective by not advising him that the penalty

 reductions enacted through the Uniform Controlled Substances Act

 of 2013 (the Act) apply retroactively and, therefore, require a

 reduction in his sentence. He also contends that the district court

 erred in denying him an evidentiary hearing on his challenge to the

 voluntariness of his stipulation (the Stipulation) to a thirty-year

 prison sentence.

¶2    We hold that, under section 18-1-410(1)(f)(II), C.R.S. 2018,

 and Crim. P. 35(c)(1), Hamm’s failure to file a direct appeal

 precludes him from seeking postconviction review of his sentence

 based on a “significant change in the law.” Further, we hold that

 the trial court did not err in denying Hamm an evidentiary hearing

 because the Act does not apply retroactively and thus cannot

 reduce Hamm’s sentence.




                                    1
         I.   Hamm’s Conviction and Postconviction Motions

¶3    Hamm was charged with one count of distribution of a

 controlled substance (3.4 grams of cocaine) in September 2011 and

 five habitual criminal counts based on his prior felony convictions.

 A jury convicted him on the distribution count.

¶4    The district court continued the trial on the habitual counts

 while the defense and the People negotiated an agreement on

 Hamm’s sentence. In exchange for dismissal of the habitual

 counts, Hamm stipulated to a sentence of thirty years in the

 custody of the Department of Corrections and five years of parole to

 avoid a mandatory sentence of sixty-four years.

¶5    Hamm filed a pro se motion in the district court to extend the

 deadline for an appeal. The court denied the motion because he

 had filed it in the wrong court. Hamm did not directly appeal his

 conviction or his sentence.

¶6    Hamm filed the Petition more than one year later. For

 purposes of this appeal, he argued in the Petition that his trial

 counsel had been ineffective by failing to advise him that the

 General Assembly had recently passed the Act and that the penalty


                                    2
 reductions reflected in the Act applied retroactively. Hamm argued

 that, if the Act had been applied to him, he would have faced a

 maximum sentence of sixteen years. He also argued that he should

 be permitted to withdraw the Stipulation because he had entered

 into it without knowledge of the Act and, further, had agreed to the

 thirty-year sentence equivocally. He asked the district court to

 conduct an evidentiary hearing on the Petition.

¶7         The district court denied the Petition after determining that

 the Act did not apply retroactively. The court held that Hamm’s

 ineffective assistance claim failed because his trial counsel would

 have been misstating the law if he had advised Hamm that the Act

 applied retroactively. The court further found that the Stipulation

 was enforceable because Hamm had entered into it freely,

 knowingly, and voluntarily. In light of its findings, the district court

 declined to conduct an evidentiary hearing on the Petition.

     II.     Section 18-1-410(1)(f)(II) and Crim. P. 35(c)(1) Bar Hamm’s
                            Ineffective Assistance Claim

¶8         We resolve Hamm’s ineffective assistance of counsel claim on

 grounds not raised in the briefs because, as a matter of law, that

 claim is not properly before us. See Moody v. People, 159 P.3d 611,

                                        3
  615 (Colo. 2007) (“[A]ppellate courts have the discretion to affirm

  decisions . . . on any basis for which there is a record sufficient to

  permit conclusions of law, even though they may be on grounds

  other than those relied upon by the trial court.”).

                  A.    The Governing Statute and Rule

¶9     Section 18-1-410(1)(f)(II) and Crim. P. 35(c)(1) bar Hamm’s

  ineffective assistance claim because Hamm did not file a direct

  appeal of his conviction and sentence. Thus, the district court

  should not have considered the claim.

¶ 10   Section 18-1-410 sets forth the circumstances under which a

  person convicted of a crime may seek postconviction review of his

  sentence. Subsection (1) of the statute allows a defendant who did

  not file an appeal to move for postconviction review:

  “Notwithstanding the fact that no review of a conviction of crime

  was sought by appeal within the time prescribed therefor, or that a

  judgment of conviction was affirmed upon appeal, every person

  convicted of a crime is entitled as a matter of right to make

  applications for postconviction review.” § 18-1-410(1).




                                     4
¶ 11   Subsection (1)(f) of the statute applies to postconviction

  motions premised on a “significant change in the law.”

  § 18-1-410(1)(f). Subsection (1)(f)(I) authorizes postconviction

  motions on the grounds that “there has been significant change in

  the law, applied to the applicant’s conviction or sentence, allowing

  in the interests of justice retroactive application of the changed legal

  standard.” § 18-1-410(1)(f)(I).

¶ 12   The next subsection of the statute imposes conditions on

  postconviction motions based on a “significant change in the law.”

  A person convicted of a crime is barred from arguing a “significant

  change in the law” in a postconviction motion if he “has not sought

  appeal of a conviction within the time prescribed therefor or if a

  judgment of conviction has been affirmed upon appeal.”

  § 18-1-410(1)(f)(II).

¶ 13   Crim. P. 35(c)(1) contains similar language:

             If, prior to filing for relief pursuant to this
             paragraph (1), a person has sought appeal of a
             conviction within the time prescribed therefor
             and if judgment on that conviction has not then
             been affirmed upon appeal, that person may
             file an application for postconviction review
             upon the ground that there has been a
             significant change in the law, applied to the
                                     5
             applicant’s conviction or sentence, allowing in
             the interests of justice retroactive application
             of the changed legal standard.

  Crim. P. 35(c)(1) (emphasis added).

¶ 14    Therefore, a person may not seek postconviction relief based

  on a “significant change in the law” unless (a) he has filed a timely

  appeal and (b) an appellate court has not affirmed his judgment of

  conviction.

   B.    Hamm Did Not File an Appeal and, Therefore, May Not Seek
         Postconviction Relief Based on a “Significant Change in the
                                    Law”

¶ 15    Hamm was convicted on the distribution count on January 31,

  2013, and stipulated to the thirty-year sentence on September 30,

  2013. Hamm filed his motion to extend the deadline for an appeal

  in the district court on October 21, 2013. The district court denied

  the motion, however, because Hamm had filed it in the wrong court.

  See C.A.R. 4(b)(1) (“[T]he appellate court may . . . extend the time for

  filing a notice of appeal . . . .”). The record contains no indication

  that Hamm ever filed in this court a motion to extend the time to

  appeal. In any event, Hamm never filed a direct appeal of his

  conviction or sentence, which became final when he missed the

  deadline to file a notice of appeal.
                                         6
¶ 16   Hamm filed the Petition two years later, on October 11, 2015.

  Because he did not file an appeal, he did not satisfy the conditions

  precedent for seeking postconviction relief based on a “significant

  change in the law,” regardless of whether the Act applies

  retroactively. § 18-1-410(1)(f)(II); Crim. P. 35(c)(1); see People v.

  Stellabotte, 2018 CO 66, ¶ 33, 421 P.3d 174, 181 (“Subsection

  18-1-410(1)(f)(I) provides for retroactive application of significant

  change in the law to a defendant’s conviction or sentence but,

  under subsection (II), during only direct appeal, before the

  conviction is final. Thus, it applies only to criminal prosecutions

  and during only a narrow procedural timeframe.”); Glazier v. People,

  193 Colo. 268, 269, 565 P.2d 935, 936 (1977) (“As we have

  repeatedly held, a defendant is entitled to the benefits of

  amendatory legislation when relief is sought before finality has

  attached to the judgment of conviction.”); People v. Thomas, 185

  Colo. 395, 398, 525 P.2d 1136, 1138 (1974) (holding that where the

  defendant sought postconviction relief during the pendency of his

  appeal, “amendatory legislation mitigating the penalties for crimes




                                      7
  should be applied to any case which has not received final

  judgment”).

¶ 17     For this reason, we affirm the district court’s denial of Hamm’s

  request for a hearing on his ineffective assistance of counsel claim.

  III.   The District Court Did Not Err in Denying Hamm’s Request for
          an Evidentiary Hearing on His Challenge to the Stipulation

         A.   Hamm May Appeal the District Court’s Ruling on the
                   Enforceability of the Stipulation

¶ 18     The People argue that Hamm missed the deadline for

  appealing the district court’s denial of his request for an evidentiary

  hearing on his challenge to the Stipulation. We disagree and

  therefore consider the issue on the merits.

¶ 19     Hamm presented through the Petition all of his arguments

  relevant to this appeal. The district court denied Hamm’s request

  for an evidentiary hearing on the voluntariness of the Stipulation on

  November 25, 2015, ten months before the district court

  adjudicated Hamm’s ineffective assistance of counsel claim. The

  People contend that Hamm was required to appeal the ruling on his

  claim concerning the Stipulation within forty-nine days of November

  25, 2015, which he did not do. Instead, Hamm filed a notice of

  appeal of the district court’s denial of his request for an evidentiary
                                     8
  hearing on each argument presented in the Petition within forty-

  nine days of the date on which the district court resolved the last of

  those arguments.

¶ 20   Neither party has brought to our attention, and we have not

  found, any Colorado case addressing the deadline for appealing

  rulings, made on different dates, that resolve discrete arguments

  presented through a single postconviction motion. Our supreme

  court has expressed a preference for avoiding piecemeal appellate

  proceedings, at least in the context of reviewing the disclosure of

  potentially exculpatory evidence in postconviction proceedings. See

  People v. Owens, 2014 CO 58, ¶ 18, 330 P.3d 1027, 1032. And, as

  a general rule, “an entire case must be resolved by a final judgment

  before an appeal is brought.” Grear v. Mulvihill, 207 P.3d 918, 921

  (Colo. App. 2009); cf. C.R.C.P. 54(b).

¶ 21   In light of the courts’ desire to avoid piecemeal appeals, we

  conclude that Hamm timely appealed the district court’s denial of

  his request for an evidentiary hearing on his challenge to the

  Stipulation.




                                     9
   B.    The Standard of Review in Appeals of Denials of Evidentiary
                    Hearings on Postconviction Motions

¶ 22    A district court must grant an evidentiary hearing on a Crim.

  P. 35(c) motion unless the motion, files, and record establish that

  the allegations in the motion are without merit and do not warrant

  postconviction relief. Crim. P. 35(c)(3)(IV); see White v. Denver Dist.

  Court, 766 P.2d 632, 634-35 (Colo. 1988).

¶ 23    We review de novo a district court’s conclusions of law. People

  v. Hardin, 2016 COA 175, ¶ 28, 405 P.3d 379, 385. “We will not

  overturn the trial court’s findings of fact if there is adequate

  support for them in the record; however, if the findings of fact are

  clearly erroneous and lack support in the record, we must set them

  aside.” People v. Hufnagel, 745 P.2d 242, 244 (Colo. 1987).

  Further, we will affirm a district court’s denial of a Rule 35 motion

  on any ground supported by the record, even if the district court did

  not consider or contemplate that ground. People v. Scott, 116 P.3d

  1231, 1233 (Colo. App. 2004).

        C.   Hamm’s Postconviction Challenge to the Stipulation

¶ 24    Hamm contends that the Stipulation was involuntary, and

  should be set aside, because he was not aware that the sentence

                                     10
  reductions reflected in the Act applied to him and because he

  accepted the Stipulation equivocally. We address these issues

  separately.

                1.   The Act Does Not Apply Retroactively

¶ 25   In interpreting a statute, we look to its plain meaning to

  determine the legislature’s intent. People v. Manzo, 144 P.3d 551,

  554 (Colo. 2006). If the statutory language is clear, we construe the

  statute according to its plain and ordinary meaning. Specialty Rest.

  Corp. v. Nelson, 231 P.3d 393, 397 (Colo. 2010).

¶ 26   Thus, in considering whether a statute applies retroactively,

  we determine the intent of the General Assembly first by analyzing

  the statutory language. People v. Russell, 2014 COA 21M, ¶ 8, 396

  P.3d 71, 73, aff’d, 2017 CO 3, 387 P.3d 750. Where the statutory

  language is clear and unambiguous, we apply the provision as

  written; no further statutory construction is necessary. Specialty

  Rest. Corp., 231 P.3d at 397.

¶ 27   Statutes that, by their terms, are effective “on or after” a

  specified date do not apply retroactively. Riley v. People, 828 P.2d

  254, 258-59 (Colo. 1992); People v. McCoy, 764 P.2d 1171, 1174


                                    11
  (Colo. 1988); see Stellabotte, ¶ 29, 421 P.3d at 180 (stating that the

  rule that criminal defendants may benefit from amendatory

  legislation that took effect before their convictions became final on

  direct appeal does not apply to statutes that, by their terms,

  concern offenses committed “on or after” a certain date).

¶ 28   Section 18-1.3-401.5, C.R.S. 2018, could not be clearer: the

  sentencing ranges adopted through the Act “only apply to a

  conviction for a drug felony offense . . . committed on or after

  October 1, 2013.” § 18-1.3-401.5(1); see People v. McRae, 2016

  COA 117, ¶ 17, ___ P.3d ___, ___ (“[R]etroactive application of [the

  Act] would have been unlawful . . . .”) (cert. granted July 3, 2017).

  We cannot apply the sentencing ranges in the Act retroactively

  because the General Assembly tells us they do not apply

  retroactively.

¶ 29   But this does not conclude our statutory analysis. Hamm

  contends that the “on or after” language of section 18-1.3-401.5 is

  ambiguous because it conflicts with the references to July 1, 1992,

  in section 18-18-602, C.R.S. 2018.




                                    12
¶ 30   As Hamm notes, section 18-18-602 states, in relevant part,

  that “penalties that were incurred, and proceedings that were begun

  prior to July 1, 1992, are not affected by the enactment of [the

  Act].” § 18-18-602. Hamm reasons that this language means that

  penalties incurred and proceedings begun on or after July 1, 1992,

  are affected by the enactment of the Act. Under this logic, the Act

  would apply to Hamm’s sentence.

¶ 31   The Act, however, made but one change to section 18-18-602,

  which the General Assembly had enacted as part of the Controlled

  Substances Act of 1992: it replaced a reference to the “Uniform

  Controlled Substances Act of 1992” with a reference to the “Uniform

  Controlled Substances Act of 2013.” See Ch. 333, sec. 60, § 18-18-

  602, 2013 Colo. Sess. Laws 1940. In the Act, the General Assembly

  replaced every reference to the Uniform Controlled Substances Act

  of 1992 in the Colorado Revised Statutes with a reference to the

  Act. See, e.g., Ch. 333, sec. 6, § 18-18-101, 2013 Colo. Sess. Laws

  1907. Whether by design or not, the drafters of the Act did not,

  however, also replace the references to “July 1, 1992” in section 18-

  18-602 with references to “October 1, 2013.”


                                   13
¶ 32   We disagree with Hamm that People v. Summers, 208 P.3d 251

  (Colo. 2009), compels the conclusion that the effective date of the

  Act is ambiguous. Summers concerned interpretation of a statute

  containing contradictory retroactivity language. The substantive

  language of the statute stated that it applied retroactively, while the

  effective date clause said the statute applied to crimes committed

  on or after the effective date. Id. at 254. The legislative history and

  other sources did not resolve the conflict. Id. at 254-56. The

  supreme court applied the rule of lenity, under which “ambiguity in

  the meaning of a criminal statute must be interpreted in favor of the

  defendant.” Id. at 258 (quoting People v. Thoro Prods. Co., 70 P.3d

  1188, 1198 (Colo. 2003)). Critically, unlike here, in Summers, the

  General Assembly had adopted the conflicting provisions through

  the same legislation. Id. at 253-54.

¶ 33   A close parsing of section 18-18-602 is unnecessary. Even if

  sections 18-1.3-401.5 and 18-18-602 irreconcilably conflict, the

  General Assembly’s 2013 language supersedes any conflicting

  language dating back to the 1992 version of the legislation. See

  People v. Heitzman, 852 P.2d 443, 446 (Colo. 1993) (stating that,


                                    14
  pursuant to ordinary principles of statutory construction, a later-

  adopted statute prevails over an earlier one (citing M.S. v. People,

  812 P.2d 632, 637 (Colo. 1991))).

¶ 34   Further, even if the General Assembly had, through the Act,

  inserted the references to July 1, 1992, in section 18-18-602, the

  General Assembly’s use of specific “on or after” language in

  18-1.3-401.5 supersedes the more general language of section

  18-18-602. See § 2-4-205, C.R.S. 2018 (providing that courts must

  give effect to the more “special or local” statute in the event of a

  conflict between such a statute and a more general statute); People

  v. Smith, 932 P.2d 830, 832 (Colo. App. 1996) (“In the event

  statutes conflict, effect shall be given to both, if possible. If not, the

  more specific provision shall prevail as an exception to the general

  rule, absent a clear legislative intent to revoke the prior specific

  provision.”).

¶ 35   Thus, the Act contains a single effective date, which specifies

  that the amended sentencing ranges in the Act apply only to

  offenses committed “on or after October 1, 2013.” § 18-1.3-401.5.

  This language compels the conclusion that the sentencing ranges in


                                      15
  section 18-1.3-401.5 are prospective only. See Stellabotte, ¶ 29,

  421 P.3d at 180. “[C]ourts cannot rewrite statutory or

  administrative rules under the guise of interpretation.” Winter v.

  Indus. Claim Appeals Office, 2013 COA 126, ¶ 27, 321 P.3d 609,

  614.

¶ 36        We further note that the Act specifically provides that section

  18-1.3-401.5 applies to convictions for drug felony offenses

  committed on or after October 1, 2013. The jury found Hamm guilty

  of distributing cocaine in September 2011 — more than two years

  before the effective date of the Act.

¶ 37        For these reasons, we conclude that the Act does not apply

  retroactively. The sentencing ranges in the Act cannot reduce

  Hamm’s sentence because the offense for which the jury convicted

  Hamm occurred more than two years before the effective date of the

  Act.

       2.    Hamm Did Not Preserve His Argument that the Stipulation
            Was Not Voluntary Because He Had Not Known He Could Seek
                     a Proportionality Review Based on the Act

¶ 38        Hamm also contends that the Stipulation was not voluntary

  because he was unaware at the time that he could seek a


                                        16
  proportionality review of his sentence based on adoption of the Act,

  even if the Act does not apply retroactively. See People v. Anaya,

  894 P.2d 28, 32 (Colo. App. 1994) (“[W]hen the General Assembly

  subsequently amends a criminal sentencing statute, even though

  the statute is to be applied prospectively, the trial court may

  properly consider it when determining whether a defendant’s

  sentence was grossly disproportionate.”).

¶ 39   We agree with the People that we cannot consider this issue

  because Hamm did not properly raise it in the district court. People

  v. Wolfe, 213 P.3d 1035, 1037 (Colo. App. 2009).

¶ 40   At the hearing on the Petition, the district court inquired

  whether a ruling on the retroactivity issue would resolve Hamm’s

  claim of ineffective assistance of counsel. The defense responded

  that the court had “to initially determine whether [Hamm] could

  have benefitted from this enactment in any way.” Defense counsel

  proceeded to argue that Hamm’s trial counsel had been ineffective

  by not advising Hamm that the Act applied retroactively.




                                    17
¶ 41   After finding that the Act had no retroactive effect, the court

  said, and Hamm’s counsel agreed, that the defense had not

  properly presented a proportionality argument:

            [THE COURT:] Now, in the recent filing by
            defense, they brought up the issue of
            proportionality. I think the McRae decision
            does make it clear that if defendant wishes to
            challenge proportionality, he has a right to do
            so. . . .

            At this point, we don’t have a proportionality
            review motion before the Court. And I think
            given how recent the McRae case is, it’s only
            fair to give defense an opportunity to review
            that case.

            If they believe they have a viable claim and
            they wish to pursue such a motion, they are
            free to file one. You know, obviously McRae is
            only one thing to consider. But my ruling on
            this motion should not be interpreted as
            predetermining one way or the other
            proportionality. I think it’s separate and
            distinct and is still out there for defense to
            consider.

            Any question from defense on my order?

            MR. MARTIN: No, Your Honor.

            ....

            THE COURT: Anything else from defense?

            MR. MARTIN: Judge, as to the proportionality
            motion, I can tell you that is something that we
            do intend to pursue . . . .
                                    18
            ....

            THE COURT: And I think that’s something
            that counsel have to look at. They have to
            research and we can address it. I’m not . . .
            making any ruling any which way on any of
            that. Because I think that’s why I keep
            referring back to there are any number of
            things that need to be considered. And I think
            you need to look at the law and see what you
            think your viable options are.

  (Emphases added.)

¶ 42   The quoted language makes clear that the defense conceded

  that Hamm had not presented a “proportionality review motion” and

  that the proportionality issue was “separate and distinct” from

  Hamm’s argument regarding the effective date of the Act. The

  defense never filed the “proportionality review motion” discussed at

  the hearing, however, even though Hamm’s counsel had actual

  knowledge that the issue had not been properly raised in the

  district court. We cannot consider Hamm’s proportionality

  argument because he did not ask the district court to conduct a

  proportionality review of his sentence. Cf. People v. Gaskins, 825

  P.2d 30, 38-39 (Colo. 1992) (holding that an appellate court may

  conduct an initial proportionality review where the district court

  had declined to consider the defendant’s challenge to his sentence).
                                    19
¶ 43   Because Hamm did not properly raise his proportionality

  argument in the district court, “we have nothing to review.” People

  v. Tee, 2018 COA 84, ¶ 42, ___ P.3d ___, ___. Therefore, we decline

  to address Hamm’s argument that the Stipulation was not

  voluntary because his trial counsel failed to advise him that he

  could rely on the Act in making a proportionality challenge to his

  sentence.

          3.     Hamm Entered Into the Stipulation Voluntarily

¶ 44   Hamm further contends that his equivocal answers at the

  Crim. P. 11 hearing demonstrate that he did not enter into the

  Stipulation voluntarily. Hamm’s Crim. P. 11 colloquy with the court

  included the following questions and answers:

               THE COURT: Do you believe you have a good
               understanding of what’s taking place with this
               stipulation?

               THE DEFENDANT: No, but -- yeah.

               THE COURT: Do you understand that what it
               is basically an agreement that I’m sentencing
               you to 30 years in the Department of
               Corrections, followed by a mandatory five-year
               period of parole?

               THE DEFENDANT: Yeah.


                                     20
             THE COURT: And have you entered into this
             stipulation voluntarily?

             THE DEFENDANT: (No response.)

             THE COURT: Yes?

             THE DEFENDANT: Yeah.

             THE COURT: Okay. Has anybody threatened
             you or forced you or made any promises to
             you, other than anything in the stipulation, in
             order to convince you to agree to this?

             THE DEFENDANT: Yeah, the D.A., but --
             yeah.

             THE COURT: By that do you mean that
             otherwise the habitual charges go forward?

             THE DEFENDANT: Yeah, but -- I understand.

             THE COURT: Okay. But I need to make sure
             that you’re doing this voluntarily, recognizing
             it’s a difficult deal?

             THE DEFENDANT: I have to take it, yes.

¶ 45   As our supreme court explained, determining whether a plea

  “represents the accused’s free and reasoned decision” requires

  assessment of “the defendant’s state of mind when he enter[ed] a

  guilty plea.” People v. Kyler, 991 P.2d 810, 817 (Colo. 1999). A plea

  is not voluntary if “the accused’s will was overborne in making the

  decision to plead guilty.” Id.

                                    21
¶ 46   The cases on which Hamm relies underscore the voluntariness

  of the Stipulation, however. See Boykin v. Alabama, 395 U.S. 238,

  239, 243-44 (1969) (allowing the defendant to withdraw plea to five

  capital crimes where the trial judge had asked no questions

  concerning the plea and the defendant had not addressed the

  court); United States v. Truglio, 493 F.2d 574, 579-80 (4th Cir.

  1974) (allowing the defendant to withdraw plea where defense

  counsel’s simultaneous representation of five codefendants with

  divergent interests resulted in ineffective assistance of counsel);

  Sanchez-Martinez v. People, 250 P.3d 1248, 1258-59 (Colo. 2011)

  (reversing denial of motion for postjudgment relief where illiterate

  defendant had been told to sign advisal of rights form even though

  it had not been read to him, he had difficulty hearing the

  interpreter, and he “had very little if any conception of what was

  happening”); cf. Kyler, 991 P.2d at 818-19 (holding that the

  defendant voluntarily pled guilty despite being shackled as a

  consequence of his prior escape attempts).

¶ 47   In contrast, the record reflects that




                                    22
       •    the trial court engaged in a Crim. P. 11 colloquy with

            Hamm;

       •    Hamm addressed the court;

       •    Hamm’s counsel represented only one defendant in the

            case;

       •    he was not shackled during the hearing on the

            Stipulation; and

       •    Hamm reads and speaks English.

¶ 48   Hamm faced the same type of decision all persons accused of

  crimes face when considering a plea: accept the stipulated sentence

  (here, thirty years imprisonment and five years of parole) or face the

  risk of conviction on the charges, which, for Hamm, would have

  resulted in a mandatory sixty-four-year sentence under the

  habitual criminal statute. Nothing in the record suggests that

  Hamm’s “will was overborne” when he entered into the Stipulation.

  Kyler, 991 P.2d at 817.

¶ 49   For these reasons, we conclude that the Petition, files, and

  record establish that Hamm’s argument for withdrawal of the

  Stipulation does not warrant postconviction relief. Therefore, the

                                    23
  district court did not err in denying Hamm’s request for an

  evidentiary hearing on the enforceability of the Stipulation.

                            IV.   Conclusion

¶ 50   The district court’s order is affirmed.

       JUDGE ROMÁN and JUDGE J. JONES concur.




                                    24
