     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
                                                                 May 31, 2018

                                2018COA78

No. 15CA1838, People v. Laeke — Criminal Procedure —
Withdrawal of Plea of Guilty or Nolo Contendere; Affirmative
Defenses — Pleading Insanity as a Defense

     A division of the court of appeals interprets Crim. P. 32(d),

which allows a defendant to move to withdraw a plea of guilty or

nolo contendere. The division concludes that Rule 32(d) does not

apply to motions to withdraw pleas of not guilty by reason of

insanity. The division therefore affirms the postconviction court’s

order that denied defendant’s Rule 32(d) motion.
COLORADO COURT OF APPEALS                                          2018COA78


Court of Appeals No. 15CA1838
City and County of Denver District Court No. 04CR503
Honorable Edward D. Bronfin, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Abel Gebre Laeke,

Defendant-Appellant.


                              ORDER AFFIRMED

                                 Division VII
                        Opinion by JUDGE BERNARD
                        Berger and Plank*, JJ., concur

                           Announced May 31, 2018


Cynthia H. Coffman, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Antony Noble, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-
Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Defendant, Abel Gebre Laeke, filed a motion that asked the

 postconviction court to allow him to withdraw his plea of not guilty

 by reason of insanity. He relied on Crim. P. 32(d).

¶2    This appeal presents the question whether Rule 32(d) governed

 defendant’s request. We conclude that it did not. We therefore

 affirm the postconviction court’s order that denied defendant’s

 motion.

                            I. Background

¶3    In 2004, the prosecution charged defendant with one count of

 criminal attempt to commit unlawful sexual contact and one count

 of indecent exposure. These charges were based on events that

 occurred while defendant was a patient at a psychiatric ward in

 Denver. See People v. Laeke, 2012 CO 13, ¶ 3.

¶4    At defendant’s arraignment, defense counsel entered an

 insanity plea on his behalf. Defendant objected. The trial court

 noted his objection, but it nonetheless decided to send him to the

 Colorado Mental Health Institute at Pueblo for a competency

 evaluation.

¶5    After the evaluation, a doctor at the Mental Health Institute

 decided that defendant was incompetent. The trial court agreed,


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  and it returned him to the Mental Health Institute until he was

  restored to competency.

¶6     The trial court also ordered the Mental Health Institute to

  evaluate defendant to determine whether he had been insane at the

  time of the crimes. The doctor formed the opinion that defendant

  had been insane.

¶7     A doctor later found that defendant had been restored to

  competency.

¶8     The trial court set a hearing to determine the status of the

  case. At the hearing, the prosecution decided to stipulate that

  defendant had been insane at the time of the crime. See id.

  Defense counsel asked the court to accept a plea that defendant

  had been insane, despite his objection that he “hop[ed] to prove” at

  trial that he had not committed the crimes. Id. at ¶ 5.

¶9     The court accepted the insanity plea, and it found defendant

  not guilty by reason of insanity. Defendant spent almost ten years

  at the Mental Health Institute.

¶ 10   At the end of this period, defendant was placed in the

  community. Shortly thereafter, he filed the Rule 32(d) motion to

  withdraw his insanity plea that forms the basis of this appeal. In it,


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  he claimed that he had not been competent when the trial court

  entered the insanity plea over his objection. He added that (1) Rule

  32(d) was the appropriate vehicle to support his claim because

  insanity pleas are “in the nature of confession and avoidance”; and

  (2) “there must be some remedy available,” even though Rule 32(d)

  does not mention insanity pleas.

¶ 11   The postconviction court denied the motion. For the purposes

  of our analysis, the court pointed to the absence of any reference to

  insanity pleas in Rule 32(d). The court then decided that Rule 32(d)

  only governed requests to withdraw guilty pleas and nolo

  contendere pleas. The court also concluded that guilty pleas and

  nolo contendere pleas “admit (or at least do not deny) guilt for the

  crime(s) charged.” In contrast, a judgment that a defendant was

  insane at the time of the crime absolves him or her of criminal

  responsibility. As a result, the court concluded that Rule 32(d)’s

  “procedure for withdrawing an admission of guilt” did not apply to

  defendant’s request to withdraw his insanity plea.

¶ 12   Turning to defendant’s assertion that he would not have a

  remedy if he could not rely on Rule 32(d), the court concluded that

  “[t]he remedy for a [d]efendant who is being held at [the Mental


                                     3
  Health Institute] is a statutory one.” This statutory remedy is

  outlined in section 16-8-115, C.R.S. 2017. It provides a defendant

  who has been found not guilty by reason of insanity with the

  annual opportunity to request that he or she be released from

  custody.

¶ 13   We conclude that Rule 32(d) did not apply to defendant’s

  request to withdraw his insanity plea. We do not address whether

  he had a remedy under any alternative statute or rule.

  II. Rule 32(d) Does Not Apply to a Request to Withdraw an Insanity
                                  Plea

¶ 14   Rule 32(d) states that “[a] motion to withdraw a plea of guilty

  or nolo contendere may be made only before sentence is imposed or

  imposition of sentence is suspended.” Notwithstanding this plain

  language, defendant contends that it should also govern his request

  to withdraw his insanity plea. We disagree, and we conclude, for

  the following reasons, that the postconviction court did not err

  when it denied defendant’s Rule 32(d) motion.

¶ 15   The Colorado Constitution gives our supreme court plenary

  authority to promulgate the Colorado Rules of Criminal Procedure.

  Colo. Const. art. VI, § 21. The interpretation of these rules is a



                                     4
  question of law that we review de novo. People v. Steen, 2014 CO 9,

  ¶ 9. To determine “the appropriate construction of a rule of

  criminal procedure, we employ the same interpretive rules

  applicable to statutory construction.” Kazadi v. People, 2012 CO

  73, ¶ 11. We interpret words and phrases according to their plain

  and ordinary meanings, People v. Voth, 2013 CO 61, ¶ 21, and we

  will not add or subtract words from a rule, see Turbyne v. People,

  151 P.3d 563, 567 (Colo. 2007). We apply facially clear and

  unambiguous language as the supreme court wrote it because we

  presume that it meant what it clearly said. See People v. Durapau,

  280 P.3d 42, 45 (Colo. App. 2011).

¶ 16   A defendant may enter four types of pleas in a criminal case:

  (1) guilty; (2) not guilty; (3) not guilty by reason of insanity; or (4)

  nolo contendere. Crim. P. 11. But a request to withdraw a plea

  under Rule 32(d) applies to only two of these: a guilty plea and a

  nolo contendere plea. If the supreme court had intended Rule 32(d)

  to cover all four types of pleas, “it certainly knew how to say so.”

  People v. Griffin, 397 P.3d 1086, 1089 (Colo. App. 2011). Instead, it

  is telling that Rule 32(d) does not refer to insanity pleas. See id.




                                       5
¶ 17   Under the well-established rule of interpretation expressio

  unius exclusio alterius, the inclusion of certain terms in a rule

  implies the exclusion of others. See City & Cty. of Broomfield v.

  Farmers Reservoir & Irrigation Co., 239 P.3d 1270, 1275 (Colo.

  2010). Because we presume that our supreme court meant what it

  clearly said when it included only two of the four types of pleas in

  Rule 32(d), we conclude that it did not intend to include insanity

  pleas within Rule 32(d)’s scope. See id.

¶ 18   We also disagree with defendant’s assertion that, for purposes

  of Rule 32(d), we should treat an insanity plea as the equivalent of a

  guilty plea because it includes an admission of the charged acts.

  Cf. People v. Chavez, 629 P.2d 1040, 1047 (Colo. 1981)(“A plea of

  not guilty by reason of insanity is a plea in the nature of confession

  and avoidance.”). But, again, the supreme court did not create this

  equivalence in Rule 32(d), even though it could have easily done so.

  See Griffin, 397 P.3d at 1089; see also Thompson v. Drug Enf’t

  Admin., 492 F.3d 428, 432 (D.C. Cir. 2007)(“Had Congress intended

  such an unusual result, we expect it would have clearly said so.”).

¶ 19   It is clear to us that an insanity plea should not be treated as

  the equivalent of a guilty plea because (1) the rules of criminal


                                     6
  procedure draw clear distinctions between the two, compare Crim.

  P. 11(b), with Crim. P. 11(e); (2) an insanity plea that a trial court

  accepts results in an acquittal of the charged offenses, while a

  guilty plea results in a judgment of conviction, Laeke, ¶ 18; and (3)

  an insanity plea “includes the plea of not guilty,” § 16-8-103(1.5)(a),

  C.R.S. 2017; Crim. P. 11(e)(1) (emphasis added).

¶ 20   Based on this reasoning, we will not address defendant’s

  additional contention that the postconviction court erred when it

  found that he was competent when the trial court entered the

  insanity plea over his objection. Defendant’s request to withdraw

  his not guilty by reason of insanity plea was not properly before the

  postconviction court because it did not fall within Rule 32(d)’s

  coverage. The postconviction court’s finding concerning his

  competency was therefore moot.

¶ 21   The order is affirmed.

       JUDGE BERGER and JUDGE PLANK concur.




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