Berrett v. State
420 P.3d 140
Utah Ct. App.2018Background
- In 2013 Sherrell Berrett (age 75) pleaded guilty to one count of securities fraud and one count of sale of an unregistered security as part of a plea agreement that required $1,308,364.73 in restitution and gave him six months to make payments.
- The plea agreement provided that if Berrett paid $400,000 toward court-ordered restitution by sentencing, the State would recommend probation; if not, the State would recommend prison. Berrett waived the 45-day sentencing rule and signed a plea statement acknowledging he understood the terms and that post-sentencing challenges must be pursued under the PCRA.
- Berrett made no restitution payments during the six-month postponement; at sentencing the State recommended prison and the court sentenced him to 1–15 years (concurrent sentences). No transcript of sentencing was in the record.
- About one year later Berrett filed a PCRA petition alleging ineffective assistance of counsel (IAC): counsel failed to investigate and promised probation, negotiated an impracticable restitution schedule, and otherwise provided deficient representation that rendered his plea not knowing and voluntary.
- The State moved for summary judgment, arguing the IAC claim was procedurally barred (citing Brown v. State) because Berrett did not move to withdraw his plea prior to sentencing and that, alternatively, Berrett could not show deficient performance or prejudice under Strickland. The district court granted summary judgment on procedural-bar grounds.
- The Court of Appeals held the PCRA was the proper vehicle for Berrett’s IAC challenge (so the claim was not procedurally barred by the need to first move to withdraw the plea), but affirmed on alternative grounds: Berrett failed to show prejudice from counsel’s performance and offered no contemporaneous evidence undermining his signed plea statement and in-court colloquy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Berrett’s IAC claim is procedurally barred because he did not move to withdraw his plea before sentencing | Berrett: PCRA allows IAC claims even if defendant did not move to withdraw his plea before sentencing; counsel who represented him at plea and sentencing could not be expected to file a withdrawal motion against himself | State: Brown requires challenges be raised at trial or on direct appeal; Berrett knew facts supporting his claim and should have moved to withdraw plea before sentencing | Held: Not barred — PCRA is proper vehicle for IAC claims when defendant did not withdraw plea pre‑sentencing (court reversed district court on procedural-bar basis) |
| Whether Berrett demonstrated counsel’s performance was deficient under Strickland | Berrett: Counsel failed to investigate, misled him about receiving probation, and negotiated an impossible restitution timetable | State: Allegations are speculative or contradicted by signed plea documents and Berrett’s in‑court affirmations | Held: Court assumed some allegations but focused on prejudice; Berrett did not present admissible evidence creating a factual dispute on deficient performance |
| Whether Berrett showed prejudice (i.e., reasonable probability he would have gone to trial) | Berrett: At 75, a 1–15 year term made trial more rational; he would have insisted on trial but for counsel’s errors | State: Written plea, plea colloquy, and agreement warned of prison; no contemporaneous evidence supports Berrett’s post‑hoc claim | Held: No — Berrett failed to show contemporaneous evidence that he would have rationally rejected the plea and insisted on trial; thus no Strickland prejudice |
| Whether the plea was knowing and voluntary | Berrett: Counsel’s misrepresentations vitiated voluntariness | State: Plea statement and courtroom colloquy show he knowingly accepted risk of prison; defendant provided no adequate explanation to contradict sworn statements | Held: Plea was knowing and voluntary; Berrett’s affidavit did not adequately explain its contradiction of prior sworn statements |
Key Cases Cited
- Brown v. State, 361 P.3d 124 (Utah Ct. App. 2015) (discussing timeliness and PCRA limits on claims known before sentencing)
- Johnson v. State, 267 P.3d 880 (Utah 2011) (PCRA bars claims that were or could have been raised at trial or on appeal; exception when same counsel represented at trial and appeal)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
- Lee v. United States, 137 S. Ct. 1958 (U.S. 2017) (prejudice for plea‑induced cases requires reasonable probability defendant would have insisted on trial; contemporaneous evidence is important)
- Blackledge v. Allison, 431 U.S. 63 (U.S. 1977) (a plea record is not invariably insurmountable where specific factual allegations call it into question)
- Menzies v. State, 344 P.3d 581 (Utah 2014) (summary judgment in PCRA context requires nonmoving party to set forth specific facts showing a genuine issue for trial)