STATE of Utah, Plaintiff and Appellee, v. Joseph Michael SMITH, Defendant and Appellant
No. 900087-CA
Court of Appeals of Utah
May 30, 1991
812 P.2d 470
R. Paul Van Dam, State Atty. Gen., Charlene Barlow (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.
Before GREENWOOD, JACKSON and RUSSON, JJ.
GREENWOOD, Judge:
Appellant Joseph Michael Smith appeals the trial court‘s denial of his motion to withdraw his plea of no contest to the charge of attempted sexual abuse of a child,
Appellant was originally charged with aggravated sexual abuse of a child, a first degree felony,
At the July 1987 plea hearing, appellant‘s counsel indicated that appellant was “unwilling to admit any culpability in connection with this offense at all,” but was nevertheless willing to enter a no contest plea and to undergo sex offender rehabilitation treatment in lieu of incarceration. An affidavit was then submitted by appellant, indicating, among other Rule 11 requirements, that appellant understood the operation of his plea as a waiver of specific constitutional rights, and that the plea was voluntarily offered. The affidavit described the pleaded offense, stating that appellant had “[a]ttempted to touch the genitals of a child under the age of 14 w/intent to cause sexual gratification or pain.”
The trial court explained to appellant that it considered the no contest plea to be equivalent to a guilty plea. Then, reviewing the affidavit, the court questioned appellant about his understanding of the pleaded offense, the State‘s trial burden of proving all elements of the offense beyond a reasonable doubt, the fact that by his plea he was giving up his constitutional trial rights, the possible penalties for the pleaded offense, and other matters.
Turning to the evidence of the charged offense, the trial court asked appellant if he had reviewed the evidence with counsel and if, upon such review, both he and counsel had concluded that the evidence could result in conviction after a jury trial. Appellant answered affirmatively. Appellant also confirmed the affidavit statement that no promises or threats had been made to secure his plea.
The State repeated the elements of the original sexual abuse charge and summarized the evidence that it believed would prove the elements of that offense beyond a reasonable doubt:
[I]f the State were to try this case, it‘s our position that we would have no difficulty proving the elements of the case, and specifically on or about September 24th of last year, 1986, that the defendant touched the genitals of a female child of 2 1/2 years of age, that he did so with the intent to either arouse or gratify his or her sexual desires or to inflict physical or emotional pain to this child or to himself.
It would be our understanding, Your Honor, as I indicated, that were we to try this case these facts would come out through the testimony of expert witnesses as well as the testimony of the child and in the form of video tape.
The colloquy between appellant and the trial court regarding the no contest plea also focused on appellant‘s desire to accept sex abuse treatment in lieu of incarceration. The trial court cautioned appellant that any agreement by the State to recommend treatment was not binding upon the court, and specifically addressed the likelihood that appellant‘s failure to admit the offense could bar his acceptance into treatment:
THE DEFENDANT: I was under the understanding that there would be no incarceration.
THE COURT: That‘s going to be a recommendation from the State. That may be a recommendation from the State; is that correct?
THE DEFENDANT: Yes, your honor.
THE COURT: Do you understand, as stated previously, that that is not binding upon me?
THE COURT: Do you understand what [the deputy county attorney] said also, and that is, that some of these programs or a specific program may not take you if you persist in claiming factually that you did not do what you‘re charged with? Do you understand that?
THE DEFENDANT: Yes, your honor.
THE COURT: And I take it you also understand that part of the basis of [the deputy county attorney] saying that she‘s going to recommend something other than incarceration is that you are in such a program.
THE DEFENDANT: Yes, your honor.
The court signed appellant‘s affidavit, announced its finding that appellant‘s no contest plea was knowingly and voluntarily offered, and accepted the plea.
Following the plea hearing, a ninety-day evaluation period ensued. A sentencing hearing was subsequently held in December 1987. The trial court expressed its ongoing concern with appellant‘s failure to admit guilt. An Adult Probation and Parole (AP & P) officer, speaking on behalf of the Bonneville sex abuser treatment facility, stated that appellant‘s ninety-day evaluation report indicated that some progress had been made by appellant toward admitting his offense. The AP & P officer indicated that the Bonneville program would accept appellant, with the understanding that he would be brought back into court if denial of his offense interfered with his treatment. The trial court then warned appellant that his probation, if granted, would depend upon satisfactory progress in the Bonneville program, as determined by the treatment staff there:
THE COURT: Mr. Smith, do you understand that if probation is granted, that one of the conditions of probation is that you enter and complete Bonneville, that if Bonneville, based on good, sound judgment, decides that you are not sufficiently advancing in that program, is that that will be deemed a violation of the condition of probation, which means your probation will be revoked and the remainder of your time will be served in the State Penitentiary?
THE DEFENDANT: Yes, your honor.
The alleged victim‘s mother also attended the sentencing hearing, and the trial court sought her approval of treatment instead of incarceration: “It‘s my view that the public is better served if he is referred to Bonneville to see if he can successfully complete that program. If he cannot, he will go to the State Penitentiary, and that‘s up to Bonneville‘s good judgment.” The victim‘s mother agreed. The court repeated to appellant that it would rely on the Bonneville staff to set conditions for keeping appellant in treatment, subject only to the limit that those conditions not be “arbitrary or capricious.” The court then imposed a sentence of zero to five years in the Utah State Prison, staying that sentence, and placing appellant on probation, provided appellant successfully participate in the Bonneville program as well as meet other conditions.
Two months later, in February 1988, appellant was back before the trial court on an order to show cause why his probation should not be revoked. The State contended appellant had failed to recall the facts of his offense, a key requirement for treatment under the Bonneville program. The probation revocation proceeding was continued pending a psychological evaluation of appellant and appellant‘s effort to find another treatment facility. Appellant‘s alternative facility rejected him because he did not admit his offense, and the psychological evaluation was apparently also unfavorable. In March 1988, appellant‘s probation was revoked, and he was sent to the Utah State Prison.
In September 1989, appellant, still incarcerated following two refusals by the board of pardons to grant parole, moved to withdraw his no contest plea. In December 1989, the trial court denied the motion, and this appeal followed.
ISSUES
Appellant argues that his motion to withdraw his no contest plea was erroneously denied because the affidavit he submitted
He alleges two deficiencies under
The State first responds that appellant‘s motion to withdraw his plea was untimely; assuming the motion was timely, the State argues that it was properly denied.
NO CONTEST PLEA
At the sentencing hearing, the trial court commented that appellant‘s no contest plea would be “the first and last no contest plea for a charge like this that I received or will receive, which inherent in that is a lack of admission of guilt.” A no contest, or “nolo contendere” plea has been recognized as a troublesome legal creature. See
In Utah, a plea of no contest can only be made with the consent of court.
TIMELINESS OF MOTION TO WITHDRAW PLEA
At the time appellant entered his no contest plea, our statute governing the withdrawal of a plea read: “A plea of guilty may be withdrawn at any time prior to conviction. A plea of guilty or no contest may be withdrawn only upon good cause shown and with leave of court.”
The State argues that the time limitation amendment to section 77-13-6 applies retroactively to appellant‘s motion to withdraw his plea.
We do not reach the issue of whether amended section 77-13-6 applies retroac
If amended section 77-13-6 applies retroactively, Rules 11(5)(g) and 11(6), clearly intended to complement it, must also apply retroactively. Therefore, appellant had the right to argue for an extension of the time to withdraw his no contest plea on the ground that he had not been provided with individual notice of the time limitation, as required by Rule 11(5)(g). It would have been up to the trial court to decide whether to allow such extension.
Because the State did not raise the untimeliness question in the trial court, appellant had no occasion to respond to it, and the trial court did not rule, as provided by Rule 11(6), on whether his motion to withdraw his plea could nevertheless be heard. Therefore, even if the time requirement of amended section 77-13-6 has retroactive application to appellant‘s motion, the State failed to preserve appellant‘s breach of that requirement as an issue to consider on appeal. Furthermore, we are not persuaded by the State‘s argument that the amended statute raises a jurisdictional question that can be addressed for the first time on appeal. Therefore, we decline to consider the State‘s untimeliness argument now. Instead, we proceed to the question of whether, as required by both the old and amended versions of
WITHDRAWAL OF NO CONTEST PLEA
The determination of whether good cause exists to withdraw a criminal plea traditionally rests within the discretion of the trial court. State ex rel. Hill, 621 P.2d 705, 706 (Utah 1980); State v. Lee Lim, 79 Utah 68, 7 P.2d 825, 833 (1932). However, a trial court errs when it refuses to allow the withdrawal of a guilty or no contest plea that was not entered in strict compliance with Rule 11(5) and (7) (formerly Rule 11(e)), Utah Rules of Criminal Procedure. State v. Gibbons, 740 P.2d 1309, 1312–14 (Utah 1987). See State v. Pharris, 798 P.2d 772 (Utah Ct.App.1990) (history of Rule 11 case law). The purpose of Rule 11(5) and (7) is to assure that a plea of guilty or no contest is knowing and voluntary. Gibbons, 740 P.2d at 1314.
The operation of
POST-GIBBONS RULE 11 ANALYSIS
We pause to clarify our approach to Rule 11-based attacks on guilty or no contest pleas. Appellant identifies the claimed Rule 11 deficiencies separately in terms of whether they appear in his affidavit or in his colloquy with the trial court regarding his plea. We will not review the affidavit and the plea colloquy inquiry in such isolation here, because the trial court carefully reviewed appellant‘s plea affidavit with appellant during the plea colloquy, and then incorporated the affidavit into the record of the plea hearing. Under such
This approach is not inconsistent with the rejection of the “record as a whole” approach to Rule 11 in Gibbons. Under Gibbons, a plea affidavit remains an efficiency-promoting starting point for strict Rule 11 compliance. Gibbons, 740 P.2d at 1313. A Rule 11 deficiency in the affidavit will not, however, render the plea invalid where incomplete or missing information in the affidavit is supplied in the plea colloquy when the defendant enters the plea.
It is critical, however, that strict Rule 11 compliance be demonstrated on the record at the time the guilty or no contest plea is entered. Gibbons, 740 P.2d at 1313 (citing McCarthy v. United States, 394 U.S. 459, 470, 89 S.Ct. 1166, 1172, 22 L.Ed.2d 418 (1969)). Therefore, if an affidavit is used to aid Rule 11 compliance, it must be addressed during the plea hearing. Id.. The trial court must conduct an inquiry to establish that the defendant understands the affidavit and voluntarily signed it. The inquiry cannot stop there, however. State v. Valencia, 776 P.2d 1332 (Utah Ct.App.1989) (per curiam) (incomplete affidavit coupled with inquiry only into understanding and voluntariness fails to meet Gibbons Rule 11 requirements). Any omissions or ambiguities in the affidavit must be clarified during the plea hearing, as must any uncertainties raised in the course of the plea colloquy. Then the affidavit itself, signed by the required parties, Gibbons, 740 P.2d at 1313, can be incorporated into the record. The efficiency-promoting function of the affidavit is thereby served, in that the court need not repeat, verbatim, Rule 11 inquiries that are clearly posed and answered in the affidavit, unless Rule 11 by its terms specifically requires such repetition.2
The foregoing procedure creates a plea record, consisting of the plea colloquy complemented by a contemporaneously received affidavit, that we examine for strict compliance with Rule 11 in accepting a guilty or no contest plea. Cases applying Gibbons have implicitly used this approach. E.g., State v. Smith, 777 P.2d 464, 464, 465, 466 (Utah 1989); Valencia, 776 P.2d 1332. Indeed, in Gibbons itself, the supreme court held a guilty plea invalid upon finding that neither defendant‘s affidavit nor his colloquy with the trial court adequately explained the elements of the pleaded crimes. In this case, the trial court properly utilized both the plea affidavit and the plea colloquy to comply with Rule 11. Accordingly, our analysis will not be based on either the affidavit or the colloquy in isolation, but on whether, taken together, the affidavit and colloquy demonstrate strict Rule 11 compliance.
SYNOPSIS OF CRIME ELEMENTS
Rule 11 Synopsis
Appellant first contends that there was no adequate synopsis of the facts constituting the elements of the crime to which he pleaded no contest. Such a synopsis is required under Gibbons, 740 P.2d at 1313, and the Rule 11 requirement that the defendant “understands the nature and elements of the offense to which he is entering the plea....”
Evidentiary Basis for Guilt
Appellant‘s fact synopsis argument also contains an argument that the trial court erred by failing to determine whether the State‘s evidence could prove the elements of the charged crime. Therefore, he argues, his plea of no contest should not have been accepted by the trial court. However, neither
Rule 11 of the Federal Rules of Criminal Procedure bars entry of judgment on a guilty plea without a determination that there is a factual basis for the plea: “Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.”
As already noted, the overriding purpose of
Here, the trial court‘s plea colloquy with appellant was sufficient to ascertain that his no contest plea was knowing and voluntary with respect to the evidence.5 The
Our supreme court has stated that a trial court has a duty to refuse a guilty plea to a crime which defendant has not committed. State v. Forsyth, 560 P.2d 337, 339 (Utah 1977). However, “[i]n performing that duty, the court is not bound to any rigidity of rule or procedure, but may do it in any manner consistent with reason and fairness which he thinks will best accomplish that purpose.” Id. In Forsyth, the trial court heard the prosecution‘s evidence summary and the response to that evidence from defendant‘s counsel at the time the guilty plea in question was received. The supreme court held that this procedure satisfied the trial court‘s duty. Id. The same procedure was followed here, likewise fulfilling the trial court‘s limited duty to assure that there was some evidence of guilt.
Even where independent inquiry into the evidence supporting a plea is required by rule, the trial court itself need not be convinced of guilt. Instead, it need only determine that there is enough evidence from which a jury could find defendant guilty. State v. Rhode, 56 Wash.App. 69, 782 P.2d 567, 569 (1989) (applying state rule identical to
Rimmasch and Webb reversed convictions that followed full development of the evidence at trial. On appeal, the supreme court in effect found that the State had failed to develop sufficient admissible evidence to support the convictions. Here there was no trial, so the State did not fully develop its evidence. Indeed, inherent in appellant‘s plea, as explicitly stated in both his affidavit and his colloquy with the trial court, was an agreement that the State would not be put to its proof at trial. Having thus relieved the State of its burden of proof, appellant‘s after-the-fact speculation that the State could not have carried that burden does not create good cause as a matter of law to withdraw his no contest plea.
In sum, the fact synopsis in appellant‘s plea affidavit, repeated during the course of his plea colloquy, fully complied with
CLARITY OF PLEA AGREEMENT
Appellant next argues that his plea failed to comply with Rule 11(5)(f) because he was not clearly informed of what was expected of him under his plea agreement. Specifically, appellant claims that he was not informed that he would have to consciously recall the acts constituting his offense in order to achieve the benefit of the State‘s agreement to recommend probation and sex abuse treatment instead of incarceration. We are not persuaded.
During the plea colloquy, when appellant expressed his “understanding that there would be no incarceration,” the trial court specifically corrected him by explaining, as also stated in appellant‘s affidavit, that the State‘s recommendation of no incarceration would not be binding on the court. The court further clarified, and confirmed appellant‘s understanding, that the option of a treatment program instead of incarceration might not be available if appellant were to persist in claiming that he did not commit the offense.
Here, the critical Rule 11 requirement was that “the court shall advise the defendant personally that any recommendation as to sentence is not binding on the court.”
Appellant‘s actual grievance here concerns his sentence and probation agreement, rather than his plea agreement. Accordingly, we examine the terms of his sentence and probation. We note, however, that as early as his plea hearing, defendant was put on notice that in order to receive treatment instead of imprisonment, he would have to admit his offense.
At his sentencing hearing, appellant‘s admission of his offense remained in question. The trial court noted that appellant might be unable to recall the offense as a result of the psychological defense mechanism known as “denial.” The court expressed concern that such denial would prevent successful treatment of appellant in the Bonneville sex abuser program. In response to this problem, the Bonneville representative specifically reserved the option to bring appellant back into court if his denial prevented effective treatment. In further response, the trial court specifically warned appellant that it would rely heavily upon the professional judgment of the Bonneville staff to determine whether he was making adequate treatment progress, and therefore complying with probation. The sole limitation was that the Bonneville staff‘s judgment not be arbitrary or capricious. Appellant indicated that he understood this.
Appellant now argues, in effect, that his failure to admit his offense resulted from his psychological denial, and that he was inadequately apprised that this denial, beyond his conscious control, could result in the loss of his probation. We disagree, because appellant‘s probation, as regards treatment in lieu of prison, was specifically conditioned upon the judgment of the Bonneville staff, without regard to whether recall of his offense was a matter within his conscious control. As noted, the record demonstrates that appellant was clearly informed of this condition. Therefore, his probation was properly revoked. Compare State v. Hodges, 798 P.2d 270, 278 (Utah Ct.App.1990), cert. denied, No. 900501 (Dec. 26, 1990) (probationer not informed of need to make treatment progress at rate judged adequate by treatment staff).
Appellant was correctly advised under Rule 11, Utah Rules of Criminal Procedure, that his plea agreement did not bind the court to the State‘s sentencing recommendation. At sentencing, it was made clear to
CONCLUSION
For the foregoing reasons, the trial court‘s denial of appellant‘s motion to withdraw his guilty plea is affirmed.
JACKSON, J., concurs.
RUSSON, Judge (concurring):
I concur in the court‘s opinion, but write separately to offer further clarification of post-Gibbons analysis of Rule 11, Utah Rules of Criminal Procedure.
I agree that in determining whether a plea has been knowingly and voluntarily made, a review of the affidavit and the colloquy between the judge and the defendant at the time of taking the plea is necessary. What is important is not the particular format followed by the trial judge, but rather, whether the plea has been knowingly and voluntarily made in strict compliance with Rule 11.
There is nothing sacrosanct about an exchange between a trial judge and a criminal defendant at the time of taking a guilty plea. A guilty plea is most often received in a crowded courtroom with the defendant, often in shackles, looking up at a judge who, in black robe, peers down from an elevated bench. The judge questions the defendant while everyone in the courtroom watches and waits. Silence in such environment can be deafening, and the pressure immense. The situation impels the defendant to immediately answer the judge‘s questions.
However, where an affidavit is used, the defendant has privacy and time to prepare, review, and discuss the affidavit with his lawyer. No one is watching and waiting. There are no time limitations. The defendant has the opportunity to ask his lawyer the meaning of certain words and phrases. Consequently, there is more assurance of a knowing and voluntary plea when an affidavit is utilized than when it is not. Of course, the trial judge must still be satisfied, by personal inquiry of the defendant, that the defendant actually read the affidavit, reviewed it with counsel, and understands it.
I do not believe that the Utah Supreme Court in State v. Gibbons, 740 P.2d 1309 (Utah 1987), intended that trial judges must doubt the affidavit of the defendant and personally inquire as to the content of each and every statement made therein. This is borne out in State v. Smith, 777 P.2d 464 (Utah 1989), where the Utah Supreme Court looked to both the affidavit and the colloquy between the judge and the defendant at the time of taking the guilty plea before finding that the record failed to establish compliance with Rule 11. The court stated:
In order for defendant‘s guilty plea to be valid and in compliance with rule 11(e)(5) of the Utah Rules of Criminal Procedure and State v. Gibbons, the record must show that he was unequivoca[lly] and clearly informed about the sentence that would be imposed. Such evidence does not exist either in the affidavit regarding the plea bargain or in the transcript of the guilty plea. Thus, rule 11(e) and State v. Gibbons require the vacating of defendant‘s guilty plea on the ground that it was not knowingly and voluntarily made.
Id. at 466 (emphasis added)
It is clear, of course, that in Gibbons, the Utah Supreme Court did place upon the trial judge the burden of ensuring strict compliance with Rule 11. The judge must satisfy him- or herself that where an affidavit is used, the defendant has read and understood it. The amount of inquiry in this regard will depend upon the circumstances. A defendant who is a college graduate and who informs the judge that he has read his affidavit, discussed it with his attorney, and understands it will natu
Accordingly, I fully concur with the majority opinion in the present case wherein the entire record, that is, the affidavit and the exchange between the judge and the defendant, was examined in determining that there had been strict compliance with the requirements of Rule 11.
PAMELA T. GREENWOOD
JUDGE