Gerrish v. Barnes

• Decision Date: 16 December 1992
• Docket Number: No. 900352,900352
• Citation: 844 P.2d 315
• Parties: Oliver Benjamin GERRISH, Plaintiff and Petitioner, v. M. Eldon BARNES, Warden, Utah State Prison, Defendant and Respondent.
• Court: Utah Supreme Court

Page 315

844 P.2d 315

Oliver Benjamin GERRISH, Plaintiff and Petitioner, v. M. Eldon BARNES, Warden, Utah State Prison, Defendant and Respondent.

No. 900352.

Supreme Court of Utah.

Dec. 16, 1992.

R. Paul Van Dam and Christine Soltis, Salt Lake City, for Barnes.

Phyllis Vetter, Salt Lake City, for Gerrish.

DURHAM, Justice:

In 1985, plaintiff Oliver Benjamin Gerrish was charged with three counts of aggravated sexual abuse of a child, a first degree felony carrying a minimum mandatory term of three, six, or nine years to life. Utah Code Ann. § 76-5-404.1. As part of a plea bargain, Gerrish pleaded guilty to one of the counts and the other charges were dismissed. He was sentenced to the middle term: six years to life.

Gerrish now seeks a writ of habeas corpus allowing him to withdraw his guilty plea. He alleges that the prosecution promised to seek the minimum three-year sentence as part of the plea bargain and that his attorney told him that he would be out of prison after three years. He claims that (1) he was denied his right to effective assistance of counsel, and (2) the plea was not knowing and voluntary because it was induced by the plea agreement, which the prosecution breached. The trial court dismissed the petition on the ground that it was successive without good cause under former Utah Rule of Civil Procedure 65B(i)(4), ¹ and the court of appeals summarily affirmed. We granted certiorari and now affirm.

In August 1985, when Gerrish learned that he was going to be arrested and charged with the above-mentioned crimes, he retained Harlan Y. Hammond to represent him. Hammond, Gerrish's neighbor was well acquainted with Gerrish and the circumstances surrounding the charges. Hammond had been a practicing attorney since 1961, but he had little or no criminal law experience. Hammond testified that he informed Gerrish of his inexperience when he was retained. Gerrish, however, maintains that he did not learn that Hammond lacked experience in criminal law until after Gerrish made his plea.

Gerrish entered his plea before Judge Timothy R. Hanson of the Third Judicial District Court on September 25, 1985. The court and the parties were mistaken as to the proper sentence for the charged offense. The plea affidavit improperly stated that the offense carried a minimum mandatory term of five, ten, or fifteen years, and neither the court nor anyone else noticed this error. ² The court asked Gerrish if he understood that a guilty plea could result in at least a ten-year prison sentence absent any mitigating circumstances and that if mitigating circumstances existed, the court could reduce the sentence to a minimum mandatory term of five years. Gerrish responded that he understood this, and the court accepted his guilty plea. The colloquy is set forth in the margin. ³

Gerrish came before the court for sentencing on October 21, 1985. The parties were still mistaken as to the proper sentence for the charged offense. The prosecuting attorney requested "a fairly lengthy period of incarceration," stating that "a five-to-life sentence with a minimum mandatory would give the Board of Pardons the ability to keep Mr. Gerrish until they feel he is safe outside of an incarceration setting." The court found no aggravating or mitigating factors and sentenced Gerrish to the state prison for a minimum term of ten years. Neither Gerrish nor his counsel objected to the sentence.

In November 1985, the Board of Pardons informed the court of its sentencing error, and the court sua sponte amended Gerrish's sentence to a minimum mandatory term of six years, with a maximum of life. The court also held a hearing on the matter on February 18, 1986, at which Gerrish was represented by appointed counsel Jo Carol Nesset-Sale. She filed a motion to declare the minimum mandatory sentencing scheme unconstitutional. ⁴ The court denied the motion. The court asked Gerrish if he would like to say anything before sentencing, but he declined. The court resentenced Gerrish to a six-year minimum term.

Gerrish appealed, challenging only the constitutionality of the minimum mandatory sentencing scheme. On November 19, 1987, this court affirmed the conviction. State v. Gerrish, 746 P.2d 762 (Utah 1987).

In May 1989, Gerrish filed a motion to withdraw his guilty plea in Judge Hanson's court, where he was originally sentenced. ⁵ He argued that the plea was involuntary because he had been denied effective assistance of counsel and that his plea had been coerced by the State's promises, subsequently broken.

Samuel Alba (now a magistrate judge for the United States District Court for the District of Utah) was appointed to represent Gerrish in his motion to withdraw his plea. Judge Hanson held an evidentiary hearing on the motion on September 29, 1989, at which Gerrish and his original attorney, Mr. Hammond, testified. Hammond testified that he understood from the beginning that Gerrish wanted to plead guilty "because he did not want to bring in any witnesses of young people, and have them rehash over what had happened." Hammond further stated that he "wouldn't have taken the case if it had been a complete defense."

With respect to the plea bargain, Hammond testified that the prosecuting attorney offered to drop two of the three charges and "as nearly as I can recollect, strive for a three year sentence." Hammond explained that he understood this to be the minimum term for the offense and that he believed Gerrish would have to serve only three years. He also stated that he conveyed this information to Gerrish.

Hammond testified further that he was "somewhat" acquainted with the victims in the case, that he lived in their neighborhood, that he knew their parents, and that he had conversed briefly with the parents before the preliminary hearing. However, he stated that he did not discuss the case with them at all. Finally, he admitted that the bar had brought disciplinary proceedings against him arising out of his handling of the case and had privately reprimanded him, in part for taking a criminal case without being sufficiently familiar with the relevant law.

Gerrish also testified at the hearing. He stated that Hammond had told him about the agreement while they were going over the plea affidavit before he entered his plea:

It came when we were in the jury room, Mr. Hammond told me, "Oliver, if you plead guilty to one count, the prosecutor has agreed to drop the other two. The prosecute [sic] has promised me that you will receive only a three year sentence. You will be out in three years. The Judge knows about this, so there is no need for you to bring it up in court. It is all set up." That's a quote.

Gerrish testified that he was "concerned" when the judge told him that he would be facing at least a five-year minimum, but that he did not say anything during the plea colloquy or afterward because Hammond had told him not to: "I just followed the instructions given me by my counsel." He testified that he never told his appellate counsel about the plea agreement because he met with her only once, at the resentencing hearing, which occurred before she filed the appeal from the original conviction. Finally, while Gerrish denied that he had intended to plead guilty from the start, he admitted that he decided to plead guilty at some point and did not change his mind until after he received his sentence.

The court denied the motion, finding that Gerrish had intended to plead guilty from the beginning. In addition, the court rejected Gerrish's claims that he did not understand what was going on during the plea colloquy and that Hammond had told him not to say anything about the alleged agreement. Finally, the court opined that it "belies credibility" to think that Gerrish would not say anything to either the court or his appellate counsel after he received a ten-year minimum mandatory sentence instead of the three years he had supposedly been promised.

Gerrish, still represented by Mr. Alba, appealed from the denial of his motion. On appeal, he argued only that the trial court was required to strictly comply with Utah Rule of Criminal Procedure 11(e) in taking his plea under State v. Gibbons, 740 P.2d 1309 (Utah 1987). ⁶ Gerrish did not challenge the trial court's findings of fact as to the knowing and voluntary nature of the plea or Hammond's effectiveness as counsel. The court of appeals summarily affirmed, holding that under State v. Vasilacopulos, 756 P.2d 92, 94 (Utah Ct.App.), cert. denied, 765 P.2d 1278 (Utah 1988), Gibbons did not apply retroactively. The court held that the trial court had applied the correct "record as a whole" standard in reviewing the entry of the plea. ⁷ Gerrish apparently did not seek review in this court.

While the motion to withdraw was pending, Gerrish submitted this petition for habeas corpus to the Third Judicial District Court. ⁸ The petition states, "This specific petition concerns only the breached plea agreement and no other issue." (Emphasis in original.)

The matter was ultimately assigned to Judge Michael R. Murphy, who dismissed the petition on March 29, 1990. ⁹ The order of dismissal noted that (1) Gerrish had had a direct appeal from his conviction, but failed to raise the issue of the breached plea agreement; (2) Gerrish had filed two previous petitions for habeas, both of which were dismissed, and had failed to prosecute appeals from these dismissals; ¹⁰ and (3) Gerrish had filed a motion to withdraw his plea, which Judge Hanson had denied. The court concluded that Gerrish had not alleged "unusual circumstances" justifying his failure to raise the breached plea agreement on his direct appeal. The court held that the petition was "successive without 'good cause' as proscribed by Utah R.Civ.P. 65B(i)(4)."

Gerrish appealed this decision, and we poured the matter over to the court of appeals. The court of appeals summarily affirmed the dismissal in an unpublished opinion dated June 14, 1990. We...