*1 464
DURHAM, Justice: Utah, Appellee, of STATE Plaintiff and Whitney Defendant John appeals Smith child, sodomy from his conviction of on a a v. degree felony, ground first on the that the SMITH, Whitney John Defendant plea was not Appellant. pursuant 11(e) entered to rule of the Utah Rules of Criminal Procedure. We reverse No. 870493. grounds on those plea and vacate the of Supreme Court of Utah. guilty. 24,1986, July charged On defendant was 30, June child, sodomy with two counts of on a first degree felonies, in violation of Utah Code (Supp.1988), Ann. 76-5-403.1 and one § abuse, count of forcible sexual a second degree felony, in of violation Utah Code Thereafter, Ann. (Supp.1988). 76-5-404 § plea bargain affidavit which provided for counts two and three to be dropped upon plea one count sodomy on a child. That was ac- cepted by the trial court. 20, 1987,
On
pursuant
November
to sec-
76-5-403.1(2),
tion
the trial court sentenced
defendant to a minimum
of five
to life. A motion to vacate
the sentence
and set aside his
denied,
subsequently
because
pendency of
appeal.
this
77-35-ll(e)
(Supp.
Utah Code Ann. §
1988),
11(e)
also known as rule
of the Utah
Procedure,
per-
Rules of Criminal
states
part:
tinent
(e)
may
accept
The Court
refuse
or no contest and shall not
accept
such a
until the court has
findings:
made the
(5) That the defendant
mini-
knows the
mum and maximum sentence that
imposed upon him
for each offense to
entered,
including
possibility
imposition
of consecu-
tive sentences....
Gibbons,
(Utah
v.
1987), “11(e) squarely this Court held that places on trial courts the of insur- burden 11(e) ing that constitutional and rule re- quirements complied are with when a Athay, City, D. Gilbert Salt Lake is entered.” Id. at 1312. We appellant. defendant and holding on based the rationale ex- Wilkinson, Barlow, Alabama, L. pressed Boykin David Charlene 395 U.S. City, plaintiff 1709, (1969), appellee. Salt Lake S.Ct. L.Ed.2d 274
465 implication legally that a im- Supreme the States Court fine could be where United posed prison of a instead sentence. is at stake for an accused stated: “What facing [punishment] the utmost demands transcript process The of open the in capable in solicitude of which courts are court also reflects the likelihood of confu- canvassing accused to the matter with the sion on issue. At the time the understanding full of make sure he has a taken, was the court asked: of conse- the connotes and And you you plead understand that 243-44, at 1712- quence.” at 89 S.Ct. Id. to this is set in this as out 13. agreement, you your- could be—submit self to an for a term— neither today, us de- In the case before mandatory five, ten, term of or fifteen regarding the fendant’s affidavit years up life in penitentiary? to the state transcript agreement nor the understand that? language clearly and un- itself contains (Emphasis added.) advising by pleading him that equivocally ambiguous, The subjecting he himself to a man- statement was and de- guilty was justified misunderstanding fendant was in prison at least datory sentence of five mandatory that a of at term least five in the He not advised affidavit years. was years legal prison only in was the sentenc- required the that he be sentenced that law ing judge pur- alternative available of The mandatory imprisonment. a term to 76-5-403.1(2), suant to Utah Code Ann. § part: in affidavit read governing the in this statute case. the of Utah the know that under laws provides “sodomy upon statute that child a possible sentence that maximum can punishable the felony as a first de- may imposed upon my plea and be gree, by imprisonment prison in the state charge to on page the identified mandatory for term which a minimum one of this Affidavit is as follows: five, ten, years, fifteen and or (a) Imprisonment in Pris- the Utah State for may be life.” mandatory for a on minimum may misled Defendant also have been five, ten, may or fifteen and which probation believing eligible he for into was for life. be 10 of affidavit: paragraph his (b) in And/or fined amount not any charge I am aware that or sen- also Ten Dollars the excess of Thousand tencing concessions or recommendations ($10,000). sentences, probation suspended or in- for (Emphasis added.) cluding charge reduction of the for sought by de- sentencing, made or either Defendant’s affidavit sen- misstated not prosecutor fense counsel or the are tencing options In open to him. State v. may binding the court and not be on Gibbons, discussed neces- we the elements by the approved or followed court. affidavit, finding sary for a that sufficient probation for eligible never was Defendant punish- “clearly it must state the allowable Ann. 76-5-406.5 pursuant to Utah Code § at charged....” ment the crimes Id. (Supp.1988), listing the the statute circum- Here, the form standard lan- used suspen- or required probation stances applicable guage sen- indeterminate not He did come within sion sentence. involving in a a minimum tences situation 76-5-406.5(1) purview of be- section mandatory did not language term. This parent, cause he neither the victim’s was It clearly punishment. state allowable legal stepparent, adoptive parent, nor phrase misleading was that Thus, guardian. subjecting he himself was that can and “possible maximum sentence upon entry mandatory prison to a sentence impression imposed” be created of a of less that sentence than added.) Copeland, Fi- In 765 P.2d possible. (Emphasis term was (Utah 1988), considered a defen- nally, option in al- we also reference to the “fine” he misunderstood (b) dant’s claim that had ternative of the affidavit created the sentencing that, requirement and my there- I’ve talked client it and about fore, not was he’s read it and understands it. He’s Copeland’s plea made. bar- paragraphs, initialed the and all that re- incorrectly gain negotiation he led sign mains to done is to date it punished ei- would be before prison stay ther sentence with a Why don’t do that *3 hospital. in the This belief was erro- state now? applicable the criminal statute. neous under Today MR. BISHOP: day is the 15th per- We held that he should therefore be September. you put So “15” have to guilty plea mitted to withdraw because your there. Write name. knowingly voluntarily it not and was made. It’s by myself been and Mr. In order for defendant’s to be Whitney Oehler and Mr. John Smith. 11(e)(5) compliance valid and in with rule you, THE COURT: Thank Mr. Smith. the Utah Rules of Criminal Procedure and you Have seen the Information on file in Gibbons, the State v. record must show case, the charges you document that unequivocably clearly that and in- with— formed about the sentence that would be you, He your BISHOP: can’t hear imposed. Such evidence does not exist ei- Honor; he difficulty hearing. has regarding ther in the the affidavit right. Smith, THE All COURT: Mr. bargain transcript guilty or in the of the you have read the Information in this Thus, 11(e) rule and State v. Gibbons case? require vacating the of defendant’s Yes, JOHN WHITNEY SMITH: sir. ground on the that it was not know- THE you? COURT: How old are ingly and made. Reversed and Fifty-nine. JOHN WHITNEY SMITH: remanded. you THE Do COURT: read and write HOWE, C.J., Associate and English language? the ZIMMERMAN, J., concur. JOHN WHITNEY SMITH: Yes. you THE Do COURT: want the Court HALL, (dissenting): Chief Justice you you to read the document now or do join setting I do not in the Court aside reading the of the waive Information? defendant’s I am because not JOHN WHITNEY SMITH: it. Waive persuaded the that was entered other right, THE All COURT: it’s waived. voluntarily. rely than and I charged in You are the Information with upon following the statements of the trial felony three offenses. The first is “Sod- State, judge, counsel for the defense coun- Child,” omy first-degree felony, on a sel, defendant, all of which are extract- punishable years is from five proceedings ed from the record of the at in the penitentiary. you life Do arraignment: the time of charge possible understand that and the THE COURT: The next matter penalty? Utah, State of John versus Whit- Yes, sir, JOHN WHITNEY SMITH: ney present Smith. Mr. with his Smith your Honor. counsel, Bishop. Willard What is the THE COURT: The second is a similar matter, in intent of the defendant Mr. Child,” “Sodomy on a a first-de- Bishop? gree felony, pen- which carries the same Court, MR. BISHOP: He’s before alty. you understand that? Honor, your arraignment. There Yes, your JOHN SMITH: WHITNEY was a recent from the Circuit bindover Honor. Court, concerning and we’re here an agreement concern- THE And the that’s been reached COURT: third count is ing Abuse,” I disposition of the case. have “Forcible a second-de- Sexual gree felony, punishable by here an re- one to 15 affidavit defendant garding bargain. $10,000 penitentiary, read it in the State I’ve investigation presentence recommend a imprison- the fine fine both imposition of sentence. No prior to the charge that you understand ment. Do made. promises have been other penalty? your respect affidavit, With Yes. SMITH: JOHN WHITNEY Honor, point out Para- let me my right. All have THE COURT: specifically indicates that 7 it graph re- the defendant an hand affidavit Count 1 is mini- punishment you plea bargain. Have garding [the] mandatory five, 10 or 15 to mum life. document? read this Do you THE COURT: Yes, your SMITH: JOHN WHITNEY just said? Mr. has Oehler Honor. Yes, your WHITNEY SMITH: JOHN discussed Have attorney? And right. All un- Yes, your SMITH: JOHN WHITNEY you plead to this derstand *4 Honor. agreement, out in this as is set it understand you Do THE COURT: to an yourself could you be—submit says? and what imprisonment a term — Yes. WHITNEY SMITH: JOHN years up to five, 10 or 15 life your initials Are these THE COURT: youDo under- penitentiary? the State paragraph? each that? stand Yes, Yes. your WHITNEY SMITH: SMITH: JOHN JOHN WHITNEY Honor. you And have THE COURT: you Do right. All THE COURT:
the document? into this you enter Yes, your SMITH: JOHN WHITNEY trial in the will no agreement, there Honor. opportunity to matter, have an you won’t right. Do have you All THE COURT: the witness- and cross-examine confront this document any question about what you stand con- against you and will es says? you plea? Do under- by your own victed No, your SMITH: JOHN WHITNEY that? stand Honor. Yes, your SMITH: JOHN WHITNEY right. All THE COURT: Honor. will notice The Court MR. BISHOP: you All Do have right. THE COURT: an has page last there been that on the your constitutional any questions about included We have interlineation. rights, Mr. Smith? about,” respect to words “or No. SMITH: JOHN WHITNEY date. agree- right. All Is THE COURT: anyone right. Has THE All COURT: out, the just set ment, Mr. Oehler to fear brought force threat or any it? Is that you understand agreement as you to enter you to cause against bear agreeing to? you are what agreement, Mr. Smith? into this Yes. SMITH: JOHN WHITNEY No, your SMITH: JOHN WHITNEY prom- other Have THE COURT: Honor. you? to made ises been freely you acting THE Are No. SMITH: JOHN WHITNEY voluntarily? Is that right. All THE COURT: Yes, your WHITNEY SMITH: Bishop? JOHN Mr. agreement, Honor. It is. MR. BISHOP: plea agree- is the What ready THE COURT: to you Are now ment, Count 1 of your plea Mr. Oehler? to to enter submit ready en- Are Information? exchange for the MR. OEHLER: your plea? 1, ter to Count defendant’s Yes, your SMITH: to dismiss JOHN WHITNEY the Court move State will Honor. agreed IAnd have 2 and 3. Counts your plea sentence, COURT: What yet the term of which was to be child, sodomy on
offense of a first-de- determined. gree felony, guilty guilty? or not judge began by saying “you could Guilty. WHITNEY SMITH: JOHN be,” paused but then and corrected himself right, THE COURT: All say yourself “submit to an basis, factual Mr. Oehler? term,” again paused, for a and then proof MR. OEHLER: The would show emphasized five, “mandatory beyond a reasonable doubt that on or up peniten- or 15 to life in the State Day of about Pioneer the defen- tiary? (empha- understand that?” engaged upon in an dant oral sexual act added) replied: sis to which defendant 10-year-old by involving the defen- “Yes, your Honor.” penis young boy’s dant’s mouth. appears It abundantly thus clear from correct, THE COURT: Is that Mr. the record that defendant’s was en- Smith? Hence, voluntarily. tered Yes, your JOHN WHITNEY SMITH: affirm would defendant’s conviction and deny request sentence and his to set aside right. THE COURT: All I find that there is a factual basis. The guilty is entered. Both sides are recom- DAVIDSON, Appeals Judge, Court of mending presentence investigation? dissenting opinion concurs in the correct, BISHOP: That’s *5 HALL, C.J. concurs, MR. OEHLER: The State STEWART, J., participate does not your Honor. herein. THE COURT: What about the other DAVIDSON, RICHARD C. Court of counts in the Information? Appeals Judge, sat. MR. OEHLER: At this time we move that Counts 2 and 3 be dismissed. objection. No BISHOP: They’re pur- dismissed plea agreements.
suant to the I’ll refer
the matter to the Adult Probation and preparation presen- Parole for the of a COTTAM, Doyle Plaintiff, V. report. tence (Emphasis added.) v. foregoing colloquy is demonstrative Glenn W. HEPPNER and Bank of Iron knowledge
of defendant’s clear of both the County, Defendants. agreed plead offense he to and the vol- HEPPNER, Heppner, untary plea. Particularly is Glenn Irvin nature of the W. por- this so reason of the underscored Company, Riverdale Water for the tions wherein counsel State reit- corporation, Appellants, Plaintiffs and erated the content of defendant’s own affi- specifically davit which indicated that the COUNTY, corpo BANK OF IRON Utah punishment for count Cottam, ration, Doyle individually, five, ten, minimum Appellees. Defendants life, fifteen and which be for if he which when asked understood No. 20382. punishment imposed, defendant re- Supreme Court Utah. “Yes, addition, sponded: your Honor.” In thereafter, judge’s response immediate July entirety, when read its leaves no ambi- guity reasonably defendant could
rely upon to draw conclusion that he facing mandatory prison other than a