State v. Dean

• Decision Date: 27 July 2004
• Docket Number: No. 20020952.,20020952.
• Citation: 2004 UT 63,95 P.3d 276
• Parties: STATE of Utah, Plaintiff and Petitioner, v. Wallace Wayne DEAN, Defendant and Respondent.
• Court: Utah Supreme Court

95 P.3d 276

2004 UT 63

STATE of Utah, Plaintiff and Petitioner, v. Wallace Wayne DEAN, Defendant and Respondent.

No. 20020952.

Supreme Court of Utah.

July 27, 2004.

Mark L. Shurtleff, Att'y Gen., Jeanne B. Inouye, Asst. Att'y Gen., Salt Lake City, David E. Doxey, Cedar City, for petitioner.

J. Bryan Jackson, Cedar City, for respondent.

AMENDED OPINION

On Certiorari to the Utah Court of Appeals

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 Wallace Wayne Dean pled guilty to two counts of child abuse and one count of assault. Dean later sought to withdraw his plea, claiming the trial judge had not strictly complied with Utah Rule of Criminal Procedure 11(e). The trial court denied Dean's motion. Dean appealed and the court of appeals reversed. The case is now before us on a writ of certiorari. We reverse.

BACKGROUND

¶ 2 On March 8, 2000, Dean pled guilty to two counts of child abuse and one count of assault.¹ These charges stemmed from incidents of abuse and assault involving Dean's two children and his now deceased wife. In exchange for Dean's guilty plea, other pending charges were dismissed.

¶ 3 In connection with his plea, Dean executed a plea statement detailing the constitutional rights he was waiving. The plea statement declared, in relevant part, as follows:

I, Wallace Wayne Dean ... under oath, hereby acknowledge that I have entered a plea of "guilty" to the offense(s) of Child Abuse (Count I), ... Child Abuse (Count III), ... and Assault (Count V).... I further understand the charge[s] to which this plea of "guilty" is entered ... and that I am entering such a plea voluntarily and of my own free will, after conferring with my Attorney ... and with a knowledge and understanding of the following facts:

I know that I have constitutional rights under the Constitutions of Utah and the United States to plead not guilty and to have a jury trial upon the charge [s] to which I have entered a plea of guilty, or to a trial by the Court should I elect to waive a trial by jury. I know I have a right to be represented by counsel and that I am in fact represented by ... my attorney.

I know that if I wish to have a trial in Court upon the charge[s], I have a right to confront the witnesses against me.... I also know that I have the right to have witnesses subpoenaed by the State at its expense to testify in Court on my behalf and that I could, if I elected to do so, testify in Court on my own behalf, and that if I choose not to do so, the jury can and will be told that this may not be held against me if I choose to have the jury so instructed.

I know that if I were to have a trial that the State must prove each and every element of the crime[s] charged to the satisfaction of the Court or jury beyond a reasonable doubt;... and that any verdict by a jury ... must be by a unanimous agreement of all jurors.

I know that ... I have a right against self-incrimination.

I know that if I wish to contest the charge[s] against me, I need only plead "not guilty" and the matter will be set for trial.... I know and understand that by entering a plea of "guilty," I am waiving my constitutional rights ... and that I am, in fact, fully incriminating myself by admitting I am guilty of the crime[s] to which my plea of "guilty" is entered.

¶ 4 Dean signed the plea statement and initialed each paragraph. The following oral exchange took place between Dean and the court at the time he signed the statement:

The Court: All right. So are these your initials by each of the 16 paragraphs?

Mr. Dean: Yes, sir.

The Court: Did you place them there after you first read each and all paragraphs?

Mr. Dean: Yes, sir.

The Court: Are you in agreement with what your attorney just said regarding what's written here, handwriting?

Mr. Dean: Yes, sir.

The Court: Okay. What is your plea to Count I child abuse, sex abuse?

Mr. Dean: Guilty plea.

The Court: Count III, child abuse, a Class A second-degree misdemeanor?

Mr. Dean: Guilty plea.

The Court: Count V, assault, a Class B misdemeanor?

Mr. Dean: Guilty.

¶ 5 Approximately one month later, on April 10, 2000, Dean filed a motion to withdraw his guilty plea, stating that the plea was not taken pursuant to rule 11 of the Utah Rules of Criminal Procedure. Dean did not specify the basis for the violation. Instead, he merely alleged that there were "two significant departures" from due process and equal protection, without further explanation.

¶ 6 The next day, the court denied Dean's motion to withdraw and imposed sentence, concluding that Dean had failed to show good cause for withdrawal of his guilty plea. Dean appealed and argued for the first time before the court of appeals that the trial court committed plain error by not advising him of his right to a "speedy public trial before an impartial jury." (Emphasis added.) The court of appeals reversed the trial court's denial of Dean's motion to withdraw and vacated his conviction, concluding that failure to include the words "speedy" and "impartial" as part of the plea colloquy constituted plain error.

STANDARD OF REVIEW

¶ 7 On certiorari, we review the court of appeals' decision for correctness. Bear River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶ 4, 978 P.2d 460. The correctness of the court of appeals' decision turns on whether that court correctly reviewed the trial court's decision under the appropriate standard of review. Newspaper Agency Corp. v. Auditing Div., 938 P.2d 266, 267 (Utah 1997). Whether the trial court strictly complied with rule 11 is a question of law, reviewed for correctness. State v. Benvenuto, 1999 UT 60, ¶ 10, 983 P.2d 556.

ANALYSIS

I. RULE 11

¶ 8 Dean argues that he is entitled to withdraw his guilty plea because the trial court failed to strictly comply with rule 11 of the Utah Rules of Criminal Procedure. The State counters that Dean's motion to withdraw was properly denied by the trial court. Moreover, the State argues that appellate review of a trial court's denial of a defendant's motion to withdraw is limited to the denial of the motion itself. Therefore, the State asserts that we must limit our review to the denial of Dean's motion to withdraw and should not consider the record of the plea proceedings, the plea colloquy, or the plea statement.

¶ 9 Utah Rule of Criminal Procedure 11(e) states, in relevant part, that a court may not accept a guilty plea until the court has found that "the defendant knows of ... the right to a speedy public trial before an impartial jury." Utah R.Crim. P. 11(e). The purpose of rule 11 is to ensure that defendants know their rights and understand the basic consequences of their decision to plead guilty. State v. Visser, 2000 UT 88, ¶ 11, 22 P.3d 1242. However, we have also declared that this purpose "should not be overshadowed or undermined by formalistic ritual." Id. Moreover, while in State v. Thurman, 911 P.2d 371, 372 (Utah 1996), we described the trial court's duty in this regard as a duty of "strict compliance," we have also declared that strict compliance "`does not mandate a particular script or rote recitation of the rights listed.'" State v. Martinez, 2001 UT 12, ¶ 22, 26 P.3d 203 (quoting Visser, 2000 UT 88 at ¶ 11, 22 P.3d 1242).

¶ 10 Plea affidavits or plea statements are properly used and incorporated into the record when the trial court determines that the defendant has read the affidavit or statement, understands its contents, and acknowledges those contents. State v. Maguire, 830 P.2d 216, 217 (Utah 1991) (per curiam). Proper incorporation of plea affidavits can save the court time, eliminate some of the monotony of rote recitation, and allow a more focused inquiry into the facts of the offense and whether the plea is knowingly and voluntarily entered. Maguire, 830 P.2d at 217-18; Utah R.Crim. P. 11 advisory committee note.

¶ 11 At the time defendant filed his motion to withdraw, a guilty plea could only be withdrawn upon good cause shown and with leave of the court. Utah Code Ann. § 77-13-6(2)(a) (1999). Withdrawal "is a privilege, not a right, that is left to the trial court's sound discretion." State v. Gallegos, 738 P.2d 1040, 1041 (Utah 1987); State v. Brocksmith, 888 P.2d 703, 704 (Utah Ct.App.1994). Therefore, appellate courts will not disturb a trial court's determination that a defendant has failed to show good cause unless it is clear that the trial court has abused its discretion. State v. Gamblin, 2000 UT 44, ¶ 9, 1 P.3d 1108.

¶ 12 When reviewing the trial court's denial of a defendant's motion to withdraw a guilty plea, the reviewing court may consider the record of the plea proceedings, including the plea colloquy and plea affidavit or statement. Visser, 2000 UT 88 at ¶¶ 4-5, 12, 22 P.3d 1242; Maguire, 830 P.2d at 217 (stating that compliance may be demonstrated on appeal by reference to the record of the plea proceedings). Thus, review of a trial court's denial of a motion to withdraw is not limited to the denial of the motion itself. The precedent in both the Utah and federal courts demonstrates that courts consistently consider the plea colloquy in reviewing the denial of a defendant's motion to withdraw a guilty plea. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); Visser, 2000 UT 88 at ¶ 4, 22 P.3d 1242. Moreover, appellate review of the trial court's denial of a defendant's motion to withdraw may also consider the facts and circumstances in which the plea was taken. See Visser, 2000 UT 88 at ¶ 13, 22 P.3d 1242 (stating the trial court's colloquy, "in light of the mid-trial context of the plea," provided an adequate basis to conclude that the trial court had complied with rule 11).

¶ 13 Finally, in general, appellate courts will not consider an issue, including constitutional arguments, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances. State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. A proper objection "puts the judge on notice of the...