State v. Stilling

JACKSON, Bеfore GREENWOOD and JJ., RUSSON, P.J. Associate GREENWOOD, Judge: Defendant, Stilling, ap- Steven Michael peals of his the trial court’s denial motion guilty pleas years his five withdraw after In were entered.1 Stilling pled to three counts of rob- bery, degree felonies under second Utah (1990). We Code Ann. 76-6-301 affirm. §

BACKGROUND Guilty Hearing Plea alleged As incidents in a result March 1984, Stilling four with robbery, first aggravated degree counts of Utah Ann. felonies under Code 76-6-302 § (1990). sought The State also an enhanced Stilling, penalty for as an habitual criminal (1990). under 76-8-1001 Utah Code Ann. § 31, 1984, arraignment August At his on Judge Hyde, Ronald the informa- before Stilling read he tions aloud hearings on pled guilty. After various matters, jurisdictional discovery and Still- agreement. to enter decided into agreement, the furtherance informations on State filеd amended Febru- 13, 1985, Stilling ary charging with three robbery, degree counts of second felonies Ann. 76-6-301 under Utah Code § robbery dropped the fourth The State argued application retroactive Code Ann. 77- State has not § 1. A amendment Quintana, thirty-day limit motions 13-6 established See State v. of the statute. provision guilty pleas. No similar to withdraw existed when (Utah App.1991). his and the entered indicating criminal enhance- of that topic and the habitual review count with attorney. Initially, expiation agree- ment. ment indicated attorney Stilling pled guilty to the three counts of gone over the [Stilling’s] facts of cases robbery pursuant to North Carolina v. very carefully, and talked [had] 160, 27 400 U.S. 91 S.Ct. Alford, key witness and the state- [had] (1970), under he main- L.Ed.2d 162 ments of all the witnessеs which the law pleading guilty tained his innocence while enforcement and the prosecuting officers agree- accept in order favorable attorney to have. claim[ed] The minute hear- ment. ing states that the amended informations agreement then original listed the court, copies given open charges filed in charges were and the reduced under the Stilling charge” “the read the clerk. plea agreement. and plea hearing, At the the court asked Still- expiation agreement The indicated that questions, seeking respons- oral ing several “[Stilling entering plea voluntarily was] understanding indicate his es which would and of free conferring own will after [his] First, plea. of the ramifications of his attorney.” agreement with ... The [his] compared previous charges, “first stated that because the trial court had re- felonies, degree committed with the use of grant charges, fused to dismissal of the firearm,” charges, to the new “second Stilling position felt he in “was of severe felonies, degree robbery by force and exposure being convicted on the 1st de- explained fear.” The court then the differ- gree Stilling felonies.” Both and his attor- penalties ence in the that attached to the ney signed expiation agreement, degree second felonies. Defendant indicat- attorney agreement his certified that the he nature of the ed understood the new fully had been discussed with his client and they and thе less serious sentences 13, 1985, by him. February understood On Next, potentially carried. the court asked Stilling was to one sentenced to fifteen Stilling waiving if he understood he was his years in the Utah State Prison on the three right jury ability to a trial and the to con- degree robbery charges. second against him. front witnesses The court apprised Stilling privilege against Guilty of his Motion to Withdraw Plea self incrimination and noted that the court August Stilling pro-se filed would treat his as an admission of petition post-conviction for relief to set sentencing purposes. Stilling for guilty pleas. assigned aside his The court right appeal that he had the advised Stilling petition counsel and sentence, guilty plea that a “did not times, finally resulting in amended several appeal. leave much” from which to The guilty pleas. a motion to withdraw Stilling also asked had been whether Judge Hyde Judge recused himself and promises exchange in given any for his assigned E. Roth was to the case. David plea, and he had coerced or whether been Stilling’s alleged amended motions One of any way. Stilling threatened was also plea hearing that deficiencies at the impaired judgment asked whether his part due in to ineffective assistance of drugs. Stilling indicated that by alcohol responded an affi- counsel. The State with gone plea agreement had over the with he counsel, Stilling’s Bernard davit attorney he understood it. believed Allen, meetings in which Allen described Stilling Stilling leading up plea аgree- to the

The court then discussed with an with counsel, agreement2 hearing. The affidavit included expiation that his Ber- ment and Allen, Stilling’s mental ca- prepared nard had to Allen’s assessment of submitted agree- Stilling's understanding of plea hearing. pabilities the court at the The and of plea agreement. paragraphs consequences contained after ment numbered “S.S.,” Stilling objected to the affidavit on the signed had the initials normally guilty plea proceedings. expiation agreement 2. The constituted the affi- davit used basis; attorney-client lacked a it R.Crim.P. basis that violated (2) appear- holding rectify counsel entered an State could privilege. New scope compliance lack of re- Stilling and clarified the substantial with ance for motion, dropping plea by of a quirements for withdrawal renewing supplementing plea hearing record claim ineffective counsel affidavit, the Allen Allen’s affidavit. evidence not available request to exclude hearing. at the time of the At the withdrawal argued that the trial court counsel The State seeks affirmance the court’s inquire adequately into the factual deny failed to- decision withdrawal argu- Stilling’s guilty grounds but on different than inadequacy ment stressed the ruling. those stated in the trial court's consti- hearing procedural ruling under both State claims that the trial court’s requirements guilty plea regarding tutional lack of particu- State, requirements for an heаring was error. The therefore, lar. urges this court to evaluate Still- existing ing’s motion on the based record argued The State trial court had plea hearing after the wheth- determine substantially require- complied with the compliance er there was with substantial guilty claiming entry ments for of a procedural requirements constitutional and inquiry into evidence of actual that entry guilty plea. for In the alterna- merely discretionary. also was The State tive, argues the State that the trial court as maintained that the record dem- whole properly Stilling’s admitted the affidavit onstrated sufficient evidence of substantial evidence, attorney trial and that this to- compliance guilty plea requirements, with gether with reсord as it existed at resorting to the submit- without affidavit sufficiently supports by Stilling’s attorney. ted trial Neverthe- compliance ruling. court’s substantial less, argued that affidavit State properly and admitted could be consid- was OF STANDARD REVIEW part as the record.

ered Stilling’s The trial found Appellate courts ulti “review the knowing voluntary guilty deny mate decision to a motion to withdraw guilty denied the motion to withdraw guilty plea under an discretion abuse of The pleas. court also entered conclusions Gardner, standard.” v. 844 P.2d State law, paraphrased as follows: (Utah 1992). 295 court’s The trial findings of lead fact which to its ultimate 1. The it existed record as at the time they decision will not “set unless to be aside was insufficient sub- establish clearly are erroneous.” The trial 11; compliance stantial with Rule ruling regarding compli court’s 2. The State can demonstrate that the procedural ance with constitutional and re knowing voluntary through quirements entry guilty plea of a is a for the use of affidavit question of law that for cor reviewed counsel; Barnes, rectness. v. 842 P.2d See Willet 3. The affidavit demonstrates that Still- (Utah 1992); 814 Hoff, State v. ing’s guilty plea knowing and volun- (Utah 1991). P.2d 1124-25 tary, and did submission the affidavit attorney-client privilege. not violate the ANALYSIS

Stilling appeals this decision. requirements accepting The ISSUES pleas through guilty have evolved appeal construing procedural claims on the trial rules decisions both (1) denying constitutionally guaranteed pro court erred his motion to due courts, his guilty plea Reviewing evaluating withdraw because the cess. in indi proceedings comply pleas, overlap did not Utah with vidual defendant’s often That Our evaluation of this case focuses on two sources. from these doctrines (1) legal two considerations: the trial proce- basic predictable, given that the overlap is compliance court’s substantial with consti- meant, some extent at rules are dural procedural requirements tutional and protec- least, incorporate constitutional (2) general; Newman, 912 F.2d v. tions. See U.S. legal trial court’s conformance with the Cir.1990); (9th v. State Salazar requirements for an 7, 8-9, (Utah Prison, P.2d 988 212 Utah in- 1993). proceedings are plea-taking The We note at the оutset that the who to insure that a defendant tended prior in this case was taken to the Utah knowingly voluntarily pleads Supreme Court's decision State v. Gib constitution protections waives bons, required strict prior to a trial ver- guarantees him or her procedural requirements constitutional and 11(c). This re- Utah R.Crim.P. dict. See Gibbons, during plea colloquy. rights defendant’s quirement protects a prior at 1312-14. Pleas taken P.2d Gib Gibbons, process. due State require “reviewing uphold courts to bons 1987). (Utah proceedings guilty pleas long as the record as a un- that the defendant must demonstrate compli whole ‘substantial demonstrate^] element of the the nature of each derstands procedural constitutional and re ancе’ with charged and the burden on offense quirements.” 842 P.2d at 861 beyond a rea- prove each element State (quoting Hoff, State v. 11(d). R.Crim.P. sonable doubt. Utah 1991)).3 (Utah 1123-24 record as a whole requirement guilty plea knowingly ‍‌‌‌​‌​‌​‌‌​​‌‌‌‌​​‌‌‌​‌‌​​​​​​​‌​​​‌‌‌‌​​‌​​​‌​‌‍A must be “facts that would substantiate demonstrate voluntarily protect made order to charge has prosecution of the at trial” Gibbons, process rights. defendant’s due as the need for a factual described been significant departure A 740 P.2d at 1312. plea. 842 for the Willett v. Barnes basis procedural require and from constitutional 1992). (Utah 862 P.2d knowing ments creates doubt as to the require voluntary a Implementation of these nature of defendant’s Hoff, 814 P.2d at 1125. “The determi guilty plea vary See accepting a ments nation of whethеr there was substantial the defendant enters somewhat when proce constitutional and plea, whereby [with he or she is sen Alford necessarily turn requirements] dural must In admitting guilt. those tenced without facts of each case.” Id. on the the record must demonstrate that cases is of the defendant’s actual there evidence Requirement Basis Utah’s Factual Alford, 400 U.S. guilt. North Carolina v. 160, 167-68, Although specifi- 27 L.Ed.2d 162 Rule 11 does not 91 S.Ct. Utah’s guilty (1970). cally require a factual basis for a entering plea; upon prosecu- trial the Rule of Criminal Procedure 3. The current Utah 77-35-11, 11, formerly proving Ann. out- § Utah Code burden of each tion would have the taking requirements doubt; procedural for the lines the beyond a reasonable of those elements guilty plеas: of plea is an admission of all those and that the elements; (5) may accept plea refuse to of The court contest, may accept guilty or no (e) defendant knows the minimum and plea has until the court found: may imposed be maximum sentence that (a) represented by the defendant is not if plea upon for each offense to which a is him counsel, knowingly right to he has waived his entered, impo- including possibility counsel; and does not desire counsel sentences; sition of consecutive made; (b) voluntarily plea (f) plea prior is a result of a if the tendered (c) rights defendant knows he has so, plea agreement, and if discussion and self-incrimination, against compulsory to a reached; agreement has been what trial, jury and cross-examine and to confront (g) has been advised of the the defendant him, against open court the witnesses filing any motion to withdraw time limits for entering he waives all of those that rights; guilty or no contest. redesignated the subdivi- A 1989 amendment (d) the nature the defendant understands sions in the rule. of the offense to which he is and elements 672 counterpart, Requirement does federal Fed. Factual Basis plea, as Alford’s 11(f), imposed law has R.Crim.P. typically guilty pleas While “con least, on, requirement pre-Gib at such express sist of both a waiver of and an guilty pleas. supreme re Our bons guilt,” pleas admission of are ones cently the need for evidence of a addressed “voluntarily, which a defendant know basis4 indicia of substantial com ingly, understanding^ consents] procedural pliance “with constitutional imposition prison if of a even sentence Barnes, 842 requirements.” Willett unwilling par he is or unable to admit his (Utah 1992) pre- (involving ticipation constituting acts plea). supreme Gibbons crime.” Alford, North Carolina v. require factual basis court described this 25, 37, 160, 167, L.Ed.2d U.S. 91 S.Ct. ment as a demonstration the record that “an court held

as a whole “facts would substanti express admission of not a ... prosecution of the at trial.” ate the requisite imposition constitutional record at 862. links a of “facts Id. Willett 37-38, place penalty.” criminal Id. at at that would the defendant at risk of 91 S.Ct. proceed upheld should the matter guilty conviction 167. Thе Court defendant’s knowing voluntary with the na trial” reviewing the plea light after “in guilty plea. ture of a against the evidence [the defendant] substantially negated his inno claim of Supreme The Utah Court enun first provided cence further and which a means ciated the need for a factual judge could which the test whether the requirement as a being intelligently entered.” Id. pleas Breckenridge, State v. at 167. The S.Ct. (Utah 1983). “sug Breckenridge further stated: gested guilty plea required that a valid showing either ‘record of facts’ ‘that the importance protecting Because of the actually crime committed of insuring innocent and defendant, or that the defendant has product are a intelli- free and legitimate for some othеr reason intelli choice, gent various state and federal voluntarily entered gently such a properly court decisions caution that ” Willett, P.2d at 862 plea.’ (quoting pleas coupled with claims of innocence 440). Breckenridge, 688 at In Breck accepted should not be unless there is a that when enridge, court held the rec (citations plea, factual for the omit- basis ord did demonstrate that ted) judge taking and until the understood nature and elements of the inquired sought has into and to resolve charged, crime the defendant could not vol the conflict between the of trial waiver plead untarily guilty. 688 Breckenridge, of the claim innocence. P.2d at 444. The court clarified Willett 10, at Id. 38 n. 91 S.Ct. at 167-68 n. 10. Breckenridge holding, stating rеc that the ultimately determined must facts ord reveal either that would Alford that the strong view of factual basis prosecution support “[i]n defendant at for the demonstrated the State suggest trial or facts that defen would expressed clearly Alford’s desire to enter it faces a risk of dant conviction despite professed inno- trial, belief his merely establishing “not facts at cence, judge we hold that did not entering for defendant’s motivation accepting commit error in it.” plea.” P.2d at 862. There constitutional 842 fore, 38, at at Subsequent the record in case Id. 91 S.Ct. must dem compliance federal onstrate substantial court decisions have confirmed Wil- requirement. requirement lett ’s factual basis factual basis Alford’s Practice, practice 4. The district court rules of at Rules Courts, and Circuit in effect District 3.6(c) (replaced the time when both Willet and entered Rule the Code of pleas, required their the court Administration). determine Judicial plea.” there is "that a factual basis

673 process, forcing due a conviction to stand in constitutional without evi- grounded guilt. dence ‍‌‌‌​‌​‌​‌‌​​‌‌‌‌​​‌‌‌​‌‌​​​​​​​‌​​​‌‌‌‌​​‌​​​‌​‌‍of in federal Rule 11. Stano rather than See 1125, (11th 1140-41 921 F.2d Dugger, v. opined 860 F.2d at 998. The dissent Newman, 1119, Cir.1991); 912 F.2d v.U.S. requires violation of Rule 11 because avoid- Cir.1990); (9th Georgia, v. 608 1123 Willett existing Supreme ance of a under (5th Cir.1979). In order to F.2d 540 law, Court violation of factual ba- Alford’s pleas type of this conform with insure that produce requirement sis should the same requirements, process due constitutionаl an result. Id. at 999. After en banc re- therefore, requires a factual basis Alford however, majority adopted plea. Alford, 400 U.S. at 91 for the dissent, urged in result Keiswetter I’s at 168.5 S.Ct. ultimately relied on Rule 11 for the basis Keiswetter, its decision. v. United States Rules of Because Rule 11 of the Federal (10th Cir.1989) (Keiswetter 866 F.2d 1301 requires that a factual Procedure Criminal II). defendant’s be entered basis contrast, By eighth separately circuit hearing,6 re federal law at analyzed an and construed the sufficiency factual bases for garding the Alford required charge factual basis for the as analyzed proce under this pleas typically requiring going evidence to each element See, requirement. e.g., dural United plea hearing. of the crimе at the time of the (5th Guichard, 1139 v. 779 F.2d States White, (8th v. 724 F.2d 714 United States Cir.), denied, 106 475 U.S. S.Ct. cert. Cir.1984). Because the defendant did not (1986); 90 L.Ed.2d 197 United States admit on one of the elements (5th Cir.1988), Bernal, cert. v. 861 F.2d 434 crime, presented the State denied, 872, 110 S.Ct. 493 U.S. testify as to that element of the witness (1989); v. De L.Ed.2d United States Later, sought crime. the defendant Cir.1991), Fusco, (4th 949 F.2d cert. — plea, claiming that the withdraw his denied, U.S.-, S.Ct. Alford supply could not the fac- unreliable witness involving L.Ed.2d 412 Some cases charge. tual basis for the Id. 716. The pleas both Rule testimony eighth circuit court held that the analysis require have mixed the allegedly an witness at defen- each, unreliable impor leaving ments for unclear the plea hearing created a sufficient fac- dant’s require tance of basis Alford’s support entry tual basis to example in ment. For United States Keiswetter, (10th Cir.1988) F.2d 992 I), (Keiswetter analyzed dissent have con- appellate state courts Other under guilty plea’s factual basis Alford. requiring inquiry strued I The dissent Keiswetter concluded charge, and the factual into basis may the factual have addressed how reviewing pre- must find evidence example, Arizona For be established.7 taking plea sented at the which validity determine the of courts guilt strongly suggests the of the ac- Alford pleas by examining two factors: evidence, strong such cused. Without First, must the state’s factual basis show permit the withdrawal of the refusal com- of evidence that defendant plea result in the anachronism would Although Alford, “strong" Criminal Procedure Code does Court a Rule 11 of Utah’s found plea particular provision. factual basis for the facts, under the See State v. not contain the same opinion specifying 470, (Utah Smith, we do not read the App.1991) 812 P.2d 478 n. 3 quantum needed to establish the of evidence 11(f) (Utah may deliberately omitted have required factual basis. rules). our 11 of the Federal Rules of Criminal Pro- 6. Rule 1179, 7.See, State, e.g., v. 829 P.2d 1182 Johnston provides: "Notwithstanding accep- cedure 301, State, 303 (Wyo.1992); v. 812 P.2d Amerson guilty, plea not tance of a of the court should State, (Idaho P.2d App.1991): v. 773 Simons plea judgment upon without mak- enter a such State, 1156, (Idaho Tiger App.1989); v. 98 satisfy 1163 inquiry there a such as shall it that is 1031, (1982). 555, 11(f). plea.” 654 P.2d 1033 Fed.R.Crim.P. Nev. factual basis for 674 cases, crime; second, however, the record a

mitted the when defendant nec- essarily reflect that defendant made vol- does not admit to all elements of must intelligent crimes, untary, knowing, charged decision the the record must be although he main- guilty plea satisfy to enter sufficient to the trial court and/or tained his innocence. reviewing court that case is enough strong acceptance to warrant of 433, Ariz. 784 P.2d Draper, 162 State v. when admitted “properly The State must defendant.8 While the record as a whole basis, complete con- factual establish^] need not be conclusive ‍‌‌‌​‌​‌​‌‌​​‌‌‌‌​​‌‌‌​‌‌​​​​​​​‌​​​‌‌‌‌​​‌​​​‌​‌‍or uncontroverted crime, in taining every element of the its question guilt, on the “there must be the trial court of what the recitation to evidence from which a court could reason- if the case had state’s evidence would show ably find that the defendant was —a Because “defen- proceeded to trial.” Id. plea.” factual basis United States decision whether to enter an dant’s Alford Owen, (11th v. 858 F.2d Cir. knowledge directly affected 1988). strength against state’s him[,]” usually it is someone other than the the factual ba-

defendant who establishes Stilling’s Plea Alford (citing King, at 263 v. sis. State (App.1977) applying requirement Ariz. In the factual basis (“factual case, was estab- basis to this we conclude that the Alford Alford by prosecutor’s recitation of the lished record as a whole demonstrates the re- case”). state’s also State v. Hamil- See quired guilt necessary indicia of actual ton, (1984) 142 Ariz. satisfy process requirements. due Alford’s (factual basis for can be estab- Alford any “the record as a lished whole The record we examine to de it, part including preliminary hear- presence termine the of a factual basis prosecutor’s proffer In ing”). Draper the Stilling’s plea consists of entire record testimony her mother of the victim and appeal, por us on includes all before plea hearing adequate at the was found tions of the trial court record on certified the factual basis for the defen- establish appeal. Although Stilling argued has dant’s as a limited record whole should be plea hearing proceedings, include in we directly

There are no Utah cases portions our other review the trial However, addressing pleas. based record and the affidavit of opinion, from other on the cases counsel, Bernard Allen.9 The recent deci jurisdictions and Utah’s Willett and Breck Prison, sion in Salazar Utah State decisions, persuaded we are that a enridge 7, 9, (1993), 852 P.2d 988 held that appear on factual basis for must considering alleged courts violations in the pre-Gibbons the record as a whole cases. taking guilty pleas are “not limited to guilty plea Rule 11 In the more usual situa tion, plea hearing may the record of the look requirement insures strength surrounding facts and circum that a defendant understands stances, including peti the information the of the State’s case and admits each attorneys crime. tioner received from his or her element of inary hearing transcript possible our contained evidence of a 8. We note a conflict between hold 470, Smith, ing Willett, State v. 812 P.2d in this case and guilty plea. factual basis for the denied, (Utah App.1991), n. 4 cert. 836 P.2d Similarly, P.2d at 863. cases have (Utah 1992). To the extent that Smith pre- the examined the record of both and necessary implied that a factual basis was not liminary hearings deduce the for factual basis See North for an it was incorrect. Hamilton, charges. a See State v. defendant’s 25, 10, Alford, Carolina v. 400 U.S. 38 n. 91 S.Ct. 91, 983, (1984). Howev- 142 Ariz. 10, 167 n. 27 L.Ed.2d 162 er, Stilling preliminary did have a because not issuing hearing, precluded we are from a simi- supreme court remanded the 9. In the prelim- lar order. to determinе if the remand case to the trial court also, plea.” manager Joli cashier and asked to see entering the See the before Cook, (Utah 1149-50 take care of a check vet v. bad his wife has 1989). Therefore, the court in this instance He manag- written. walked to where the admitting affidavit by not err Allen’s pick up did er was and him he told wanted to utilizing in its assessment. and it check a bad his wife He written. pulled handgun then out a a from brown record specific portions The of the paper sack the manager and told “this is upon rely to establish an which we robbery, go up let’s The the safe.” following: for include the affidavits placed from check cash three stands was warrant, affidavits for search war arrest sack; in the brown the defendant then car, informations, original the rant of the manager the his keys asked for and had requests discovery, answers to for him his car with walk out to him and told witnesses, in- subpoenas amended for the him he would leave the five car about Stilling pled guilty, the formations to which away. blocks Defendant has identi- been agreement, transcript the of the expiation by photo lineup by employees fied of U & Allen’s affidavit. being person I as who the committed each before the trial court contained record robbery[.] Stilling’s plea these documents when taken, exception hear with the of the Officer' Zimmerman also executed the Allen ing transcript and the affidavit. warrant, following affidavit for search naming The affidavits for arrest warrant in issuance of which resulted a search war- burglary original on armed executed rant on an automobile owned charges signed by Zimmer- were Officer Stilling: man, Ogden Department, of the Police who establishing grounds The facts “personally acquainted averred he was issuance of Warrant Are: Dur- a Search in this case.” Because the with facts 3/10/84, period the time from there three, charges only reduced to four were eight in aggravated were robberies only files we have the three area. City-Ogden Salt Lake All the rob- of- Stilling pled guilty to which to lesser suspect beries were done who all fenses. Two of them state: suspect, witnesses describe as same suspect On 3/31/84 a white male entered operation, all mode of same Wangsgards gun held a book- to the course grocery During all at stores. holdup it keeper telling her that was a I in- investigation, have received open her to safe. The ordered suspect Oregon who formation on a bookkeeper manager attempted to in the area at Ogden the time open, open get could it safe but suspect Still- robberies. Steven suspect prior from the ran store ings possitively identi- has been being get up [sic] into the and ran able to safe by photographs by fied six as witnesses parked parking lot to a vehicle suspect A vehicle in the robberies. vehicle, placed with owner registerеd Stillings was aban- him to Steven head ordered gun to the owners Ogden area on about Suspect fled in the doned of the car. then out impounded by Og- employ- car. He has identified 3/16/84 and has been been Wangsgards by photo lineup City being 755 W ees of den and is stored at being person attempted 17th, who to rob Auto. At least two Intermountain prior them. occurred to the car of the robberies being Stillings has been American, abandoned. male thin On 3/31/84 a white robbery build, tall, since the first approximately 6 seen with the car feet large approached mustache nose occurred. Blackburn, initially 470- also Hunt 128 U.S.

10. Because the affidavit submitted See response (1888); claim as- of ineffective Rule 32 L.Ed. 488 9 S.Ct. counsel, it did not violate thе attor- ‍‌‌‌​‌​‌​‌‌​​‌‌‌‌​​‌‌‌​‌‌​​​​​​​‌​​​‌‌‌‌​​‌​​​‌​‌‍sistance 1.6(b)(3) Conduct. Utah R.Prof. 504(d)(3). ney-client privilege. Utah R.Evid. original four following The informations described evidence obtained from the wit- robberies, occurring nesses; on Ogden RODELL, area three MIKE DOROTHY SMITH, 1984. March 1984 and one on March TOM HADLEY crime, information Each described expiation agreement very help- is not victim, date, use or facsim- of firearm issue, “[I, ful on this but it does state that ile, whom and named witnesses from evi- Stilling, position in expo- of severe am] original was obtained. The informa- dence being degree sure of convicted on the 1st Stilling’s arraign- read aloud at tions were originally charged against felonies me.” ment. colloquy Stilling The court’s does discovery proceedings, In the course of against Stilling address Stаte’s case provided poten- all the State the names of offenses, and the elements of the com- charges tial for each of the four witnesses pared degree first felony charges to the anticipated trials. of The number wit- degree felony charges second ex- ranged eight per from nesses to sixteen plained penalties the different that at- addition, trial. sub- record contains Therefore, tached to it add to did not each. witnesses, poenas served on some of those ability trial court’s or this court’s preparation for trial. assess an basis The amended informations filed at were charges. affidavit, Bernard Allen’s howev- plea hearing Stilling the time of the er, our strength bolstеrs confidence in the given copies of them. not clear if It is case, of the by stating that “both the amended informations read at the [Stilling] the Petitioner and I felt that the plea hearing, only stating minute prospects actually winning any on trial “charges” that the were read. infor- (4) cases, of the four based on the fact upon each state mations oath that the com- situation, very slim indeed.” plainant has reason to that the de- believe Viewing whole, record as a we are degree felony fendant committed a second privy constituting to the basic facts each robbery. They further state on charge Stilling pled, identity to which March 1984: victims, identity of the witnesses [Stilling] person- 1. did unlawfully take call, prepared State probable testi- property possession al of Ted mony identifying Stilling perpetrator as the (U COOP) person, & I Browne from his crimes, consistency the vic- between will, presence, against or immediate his descriptions Stilling tims’ and his actual accomplished by means of force or appearance, and apparent belief Still- fear.... This information is based on ing and his trial counsel that the State had following obtained evidence from the wit- case. While winable this method fer- BAILEY, RODNEY nesses: TOD MC reting charges a factual out basis for the is ELYEA, ROCHELL, LT. PD ROY prosecutor less than a presenting desirable [Stilling] person- 2. did unlawfully take same at it is sufficient property possession al of Earl persuade us that the State had a viable person, Deroboam or immediate basis, basis, prosecuting a factual Still- presence, against will, accomplished Thus, on the pled. which he fear_ by means of force or This in- reasonably trial court could have con- formation based on evidence obtained cluded there was a factual following from the EARL DE witnesses: the Alford ROBOAM, HADDLEY, TOM C.M. ZIM- MERMAN, OPD Compliance Rule 11 Substantial [Stilling] unlawfully person- did take property possession Dorothy al argues also that the (Wangsgard’s Market) from her comply during Smith failed with Rule 11 person, against or presence, plea hearing. immediate argument This based will, accomplished by arguments her of force means on more usual did the court This fear.... information is based оn not each element address cases, plea that in Stilling under- states there must ascertain that offenses Alford pleas. supra are a factual basis the see impact of his We be fully the stood Roth, 672-674,1 join however, pp. opinion’s do not the main Judge as was persuaded, fully reading of what constitutes a factu- Allen narrow the of Bernard that affidavit basis, in- it states: knowingly and al wherein that establishes plea. The affidavit telligently entered his however, cases, when a Alford others, following contains, among the necessarily does not admit to statements: crimes, all elements of the the Aggravat- satisfy the elements to

We discussed record must be sufficient attempt- great length and Robbery reviewing ed at that trial court and/or effort enough them in detail an strong ed to examine case is to war- con- escaping guilt to a factual basis when acceptance find rant by viction. the defendant. not admitted robbery offense elements [T]he omitted). (footnote at 674 Id. Peti- in detail with the were discussed Barnes, explained As in Willett v. Infor- myself and the Amended tioner (Utah 1992), P.2d 860 a factual basis he read thor- given to him which mations found when the record of facts establishes oughly, ... committed the either that the defendant lengthy meetings] numerous were [There charged crime or that other facts exist that case, po- regarding the facts of prosecution of would substantiate appeal the eventual tential for Thus, charge at under trial. Id. at negotiation. Willett, essential, it is at the time of the meetings it Petitioner made In those establishing strength of plea, for facts completely fully me that he clear to case shown in prosecution’s to order be against the facts of understood to evaluate the for the defendant be able him the elements of crimes Otherwise, the defen- risks of conviction. charged and elements which he was truly knowing make a dant could plead he of the crime that voluntary Accordingly, ruled plea. Willett negotiation. cannot satisfied that a that a “court be knowing voluntary plea is unless whole, as we find Based on the record facts that would the record establishes 11 and with Rule substantial- risk of conviction place defendant at voluntarily en- Stilling knowingly that proceed to matter trial.” should the pleas. tered his However, actual requiring evidence of CONCLUSION cases, as the main guilt here, requiring than opinion rather does Stilling’s that the record in We conclude guilt or facts that of actual either evidence actual sufficient evidence of case contains prosecution would substantiate otherwise provide factual basis for trial, compelled charge is not required by the decisions as is, such, by Alford, and nor that there was also conclude Willett. We and ill-advised extension unwarranted 11 and compliance with Rule thereof. knowing and vol- Stilling’s pleas Further, did not err untary. the court JACKSON, (concurring): Judge considering the рost admitting and hearing affidavit today. the result reached I concur with affirm. counsel. We therefore However, point out separately I write opinion is unclear as majority RUSSON, Judge Presiding Associate to a show- level of evidence amounts what (concurring specially): required for an factual basis opinion states concur, following reserva- I with the from which opinion correctly “there must be evidence the main tions. While reasonably bargains. court could find that the defen- A rigid less standard will allow discretion, dant was factual basis for the the court discourage will future —a plea.” opinion litigation states that plea bargain, also and will allow leeway record in this case must reveal either facts the defendant in determining his or support prosecution of a would her fate. suggest defendant or the defendant faces a In

substantial risk of conviction trial. conclusion, opinion states the rec-

ord contains “sufficient evidence of actual

guilt provide a factual basis.”

Further, potentially problematic it is require a “sufficient” or “reasonable” fac- HOLLAND, Petitioner, Kevin pleas tual basis for in cases involv- ing pleas to lesser or unrelated offenses. may any Defendants have number of rea- BOARD, CAREER SERVICE REVIEW plead guilty. example, sons to For it would Education, Depart- State Office of eminently good preserve make sense to Management, ment of Human Resource one’s employ- economic welfare and future Respondents. by avoiding “felony ment conviction” Alsо, many plead guilty label. defendants No. 920486-CA. mandatory sentencing. to avoid Appeals Court of of Utah. problem requiring even a “rea- June degree sonable” “sufficient” of evidence guilt possibility of a defendant’s is that no judge

exists for a guilt to find evidence of involving pleas some ‍‌‌‌​‌​‌​‌‌​​‌‌‌‌​​‌‌‌​‌‌​​​​​​​‌​​​‌‌‌‌​​‌​​​‌​‌‍cases to a lesser or unrelated example, offense. For

assume a defendant is with bur-

glary, and the requisite defendant has the

intent actually to commit theft but does not any property.

exercise control over As- defendant, pursuant

sume also that the plea agreement, pleads guilty to a misde- charge. judge

meanor theft A could not

find “sufficient” or “reasonable” evidence guilt

of the defendant’s because one of the

requisite elements of theft never occurred. when, example

Another pursuant occurs plea agreement, pleads a defendant crime, attempted to an rather than situation, In actual crime. this may not have acted with the

requisite required “attempt- intent Thus,

ed” crime. the above are en- upon imaginary

tered based or fictional situations,

sets of facts. these the re-

quirement any level of evidence of rejection guilty plea

would result

and frustration of attempt the defendant’s

to secure a more lenient sentence. It

would also result in increased costs for the options

courts and would limit the

Case Details

Case Name: State v. Stilling

Court Name: Court of Appeals of Utah

Date Published: Jun 25, 1993

Citation: 856 P.2d 666

Docket Number: 920186-CA

Court Abbreviation: Utah Ct. App.