Drug defendant’s motion to withdraw plea nixed | AspenTimes.com

Drug defendant’s motion to withdraw plea nixed

Chad Abraham

A judge Monday rejected a defendant’s attempt to withdraw a guilty plea related to drug raids Dec. 2 in Aspen.Edubiel Hernandez-Cruz pleaded guilty in April to cocaine distribution. But his attorney, Chip McCrory, said the judicial district’s probation department ruled out the possibility of a probation sentence and recommended prison.Hernandez-Cruz was not aware that pleading guilty equated to an automatic prison sentence, McCrory said. He told Judge James Boyd that his client should have the chance to withdraw the guilty plea and discuss his options.McCrory said the state Legislature has not enacted a sentencing guideline that automatically prohibits probation for those pleading guilty to drug distribution. He said that the probation office was actually setting sentencing policy, a role the Legislature and judges usually fill.Prosecutor Gail Nichols opposed the withdrawal motion. She said people who plead guilty to drug distribution rarely qualify for probation, and that there were no extenuating circumstances that would allow probation for Hernandez-Cruz. Nichols also emphasized that sentencing is the judge’s responsibility.”The probation department is taking a strong stand,” she said.Boyd acknowledged that an automatic prison sentence is something Hernandez-Cruz should have been aware of before pleading guilty. But he also said judges occasionally deviate from a probation office’s recommendations. And it is quite common for judges to consider factors that presentence reports such as the probation department’s recommendation don’t include, Boyd said.He denied the withdrawal motion and scheduled sentencing for June 5.Boyd reset the hearing for June 5. As part of a plea agreement, Velazco-Estrada would serve no more than five years if he pleads guilty, his attorney said. The attorney for Jose de Jesus Velasco-Estrada asked for a continuance to review the transcript of a preliminary hearing. He is charged with money laundering, cocaine distribution and conspiracy to distribute cocaine.Boyd agreed and set the defendant’s next court date for June 5.Chad Abraham’s e-mail address is chad@aspentimes.com

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