A judge Thursday denied a local man’s attempt to withdraw his plea of guilty to indecent exposure after the defendant contended he was unaware that the consequences include having to register as a sexual offender for at least 10 years.
Benjamin Morton, 30, who was representing himself when he entered the plea to the misdemeanor charge on Oct. 15, also claimed he did not realize that doing so would cause him to violate his probation from a 2017 public-indecency case.
Morton was also charged with burglary, a felony to which he pleaded guilty in exchange for a deferred sentence, meaning it will not appear on his record if he stays out of further trouble. The counts stemmed from a person reporting to police on May 23, 2018, that she walked into her home and saw Morton masturbating in her roommates’ room.
At the time, the defendant was on probation for a public-indecency conviction related to a petty-offense case involving the jets of a hot tub at a Snowmass Village condominium complex.
For the latest case, Morton tried to enlist the public defender’s office, but it deemed he exceeded income guidelines. He decided to represent himself because of financial reasons. He has since hired Aspen attorney Michael Fox, who filed a motion to withdraw the guilty plea in March.
It was only some time after pleading guilty to indecent exposure that he learned “a conviction of this nature would cause Mr. Morton to become a sex offender under Colorado law and that would cause him to face numerous sexual-specific requirements,” the motion says.
Fox wrote that Judge Chris Seldin of Pitkin County District Court, during sentencing, failed to mention such consequences. In court Thursday, Fox told the judge that Morton has mental-health issues and wasn’t aware of what a deferred sentence is, the ramifications of his guilty plea, or even what he was pleading guilty to. The attorney said his client had a “fundamental misunderstanding” of the judicial proceeding.
But Judge Seldin said he never had any hesitation about whether Morton understood what he was doing. In the sentencing hearing, he asked the defendant what he had done that made him guilty.
“I’d rather not discuss it,” Morton said.
The judge said he had to establish a factual basis for the guilty plea, and Morton eventually waived the factual basis.
Judge Seldin said Thursday that Morton likely did this because he was embarrassed and didn’t want his parents to find out.
Furthermore, doesn’t Morton agreeing during sentencing that he understood everything that the judge told him preclude him from returning to court and saying that that wasn’t the case, Seldin asked Fox.
“Isn’t that what you’re doing?” the judge asked, adding that if he allowed the withdrawal, any defendant could come back and say, “Judge, I had no idea what I was doing” regarding guilty pleas.
Prosecutor Don Nottingham agreed, saying such a ruling would allow defendants the license to withdraw their guilty pleas. He said Morton, like everyone, has the right to represent themselves and can do so for a myriad of reasons.
He also wrote in a response to Fox’s motion that he personally informed Morton via emails, when the plea offer was made, of the consequences. This included Nottingham telling the defendant that indecent exposure is a sex offense and that if convicted of the offense, “you will have to register as a sex offender. The conditions of the deferred judgment and sentence will include, among other things, successful completion of sex offender treatment through the probation department.”
The prosecutor said he believed Judge Seldin’s advisement at sentencing was adequate. He also cited boilerplate language in the plea deal that Morton agreed to when he signed it, including that he understood conditions of the deferred judgment and sentence will be subject to provisions of state law concerning “treatment of sex offenders,” and “I understand that I will be required to register as a sex offender as prescribed” under state statutes.
Fox argued that Morton’s case was “exceptional” in that his mental-health issues affected his ability to understand the proceedings and the legal questions, which are not simple “yes-or-no” inquiries. Allowing the plea to stand would subvert justice, he said.
Judge Seldin said he found the defendant’s arguments unpersuasive. As the case progressed, he said he had numerous opportunities to observe Morton, and “it was always my impression that he understood the explanations.” The defendant further had reasoned explanations for why, at that time, he wasn’t hiring an attorney.
“There was no reason not to believe his answers to my questions were accurate and truthful,” the judge said.
Cases like this mandate that judges ask defendants direct and detailed questions touching on all parts of plea deals and potential consequences, he said, “and [Morton’s] answers indicate that he understood all of them.” To allow such a withdrawal would “make a mockery of the court” and the serious step of entering a guilty plea, Judge Seldin said, noting that there is no “absolute right” for defendants to withdraw after the fact.
Sentencing for Morton, who can petition to be removed from the sex offender registry after 10 years, was set for May 20.