State v. Gibson
| Decision Date | 23 April 2009 |
| Docket Number | No. 20080296-CA.,20080296-CA. |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Judy GIBSON, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Linda M. Jones, Gretchen Havner, and C. Bevan Corry, Salt Lake City, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges THORNE, ORME, and DAVIS.
¶ 1 Defendant Judy Gibson appeals the district court's denial of her motion to withdraw her guilty plea. Gibson argues that she should be allowed to withdraw her plea because it was not knowingly and voluntarily entered. We affirm.
¶2 The State charged Gibson with one count of unlawful dealing of property by a fiduciary, see Utah Code Ann. § 76-6-513 (2008), and one count of theft by deception, see id. § 76-6-405. These charges were a result of Gibson taking out and using credit cards in the name of her elderly, incapacitated aunt; taking out a mortgage on her aunt's home and using the money for her own expenses; and writing herself checks from her aunt's checking account.
¶3 In June 2004, Gibson and the State entered into a plea agreement, in which Gibson pleaded guilty to the charge of unlawful dealing of property by a fiduciary and the State dismissed the charge of theft by deception. The plea agreement provided that Gibson would pay a minimum of $55,220 in restitution, but because there was a dispute over other amounts owed, the parties requested a restitution hearing. The district court scheduled a restitution hearing, placed Gibson on probation for thirty-six months, and held the plea in abeyance for thirty-six months.
¶4 The restitution hearing was held in October 2004. The resulting order set the total restitution amount at $238,184.92. Gibson subsequently moved to amend the restitution order, arguing simply that the total figure was incorrect because it contained certain amounts that she had not taken from her aunt. The district court denied the motion.
¶5 In January 2005, the State filed a motion for order to show cause as a result of Gibson's complete failure to make restitution payments. Gibson admitted the allegations at a hearing in March 2005, at which time the district court revoked and reinstated the probation and plea in abeyance, ordering payments to begin in April 2005. Gibson made payments through October 2005 but thereafter again failed to make restitution payments. Thus, in March 2006, the State filed a second motion for order to show cause.
¶ 6 A few months later, in June 2006, Gibson filed a motion to withdraw her guilty plea, arguing that her plea was not knowing and voluntary because neither the total restitution amount nor the required monthly payment was fixed at the time of her plea.1 After briefing and oral argument, the district court determined that the plea was knowing and denied the motion.
¶ 7 A hearing was then held on the second motion for order to show cause. The district court determined that Gibson had not complied with the plea in abeyance, entered Gibson's guilty plea, and set a sentencing hearing. Gibson was later sentenced to a suspended prison term of one to fifteen years, thirty days in jail, twelve months probation, and restitution. Gibson thereafter timely appealed the denial of her motion to withdraw her guilty plea.
¶ 8 Gibson argues that the district court misapplied the law when determining that her guilty plea was knowing and voluntary. "[T]he ultimate question of whether the trial court strictly complied with constitutional and procedural requirements for entry of a guilty plea is a question of law that is reviewed for correctness." State v. Holland, 921 P.2d 430, 433 (Utah 1996).
¶ 9 Under rule 11 of the Utah Rules of Criminal Procedure, the district court may not accept a guilty plea unless it determines both that the defendant knows the various consequences of entering a guilty plea and that the defendant is voluntarily entering the plea. See Utah R.Crim. P. 11(e); see also State v. Visser, 2000 UT 88, ¶ 11, 22 P.3d 1242 . Gibson argues that she was not informed of the consequences of her plea because the restitution amount was not sufficiently established at the time she entered her plea. Accordingly, Gibson contends that her plea was not knowing and voluntary and that the district court should have therefore granted her motion to withdraw her plea.
¶ 10 "The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). But this does not require that the defendant know the exact ultimate result of entering a guilty plea. "[T]he substantive goal of rule 11 is to ensure that defendants know of their rights and thereby understand the basic consequences of their decision to plead guilty." Visser, 2000 UT 88, ¶ 11, 22 P.3d 1242 (emphasis added). Certainly a defendant can understand the basic consequences resulting from his or her plea without knowing the exact dollar amount of restitution.2 Indeed Gibson acknowledges that "parties may enter into a knowing and voluntary plea agreement even if they dispute restitution amounts." Nonetheless, Gibson argues that the information she had at the time of sentencing was insufficient to give her a "basic understanding of the possibilities under the plea." We disagree and hold that an otherwise knowing and voluntary plea is not affected by a dispute over the amount of restitution.
¶ 11 That is especially true in this case. The record supports that Gibson understood the basic consequences of her guilty plea, and we do not agree with her that "the parties lacked a mutual understanding as to the amount in restitution that may be pursued." First, the plea agreement recited that the parties agreed on a minimum amount of restitution but that other amounts were still in dispute and would be determined at a later date:
The parties agree there is at least $55,220.00 due and owing in restitution in this matter. However, due to a dispute over other amounts, a restitution hearing is requested by the parties. The restitution amount to be determined at said hearing will cover the time period April 7, 2002 to October 31, 2003.
Second, the prosecutor specifically noted his intention to seek restitution above the agreed-upon minimum amount:
Basically the major concern here, as explained to the Court, is there's a stipulated amount of restitution of $55,220, but that there are additional funds that the State claims were taken ... and I believe we need a brief restitution hearing to determine how much credit the Court is going to give for some of those services.
Third, the district court clarified that Gibson would be required to make a full restitution:
I am also going to require as part of this plea in abeyance that you fully and completely pay restitution. The amount of $55,220 is due and owing in this matter at the time as part of the negotiation today. There may still be some concerns about further restitution during the time period of April 7th, 2002 through October 31st of 2003 and I understand that both parties wish an opportunity to gather some documentation to get some information on that restitution amount and so I am going to set that for a restitution hearing upon everyone's request in the October time frame.
Fourth, the plea agreement specified that restitution would be "for the benefit of [Gibson's aunt] to the various credit cards and other creditors identified at the restitution hearing." (Emphasis added.) Fifth, Gibson acknowledged in the agreement, "I also know that I may be ordered to make restitution to any victim(s) of my crime, including any restitution that may be owed on charges that are dismissed as part of a plea agreement." And finally, the fact that Gibson took out a mortgage in her aunt's name and used the proceeds for herself was also stated as part of the factual basis supporting the count to which she pleaded guilty. Thus, we see nothing here that would have given Gibson the impression that she would not be required to make restitution in any amount greater than the $55,220 resulting from her unauthorized credit card usage.
¶ 12 Gibson bases much of her argument on State v. Bickley, 2002 UT App 342, 60 P.3d 582, which held,
If an agreement is reasonably disputed, or if there is some misunderstanding, it is the responsibility of the trial court to assure that the agreement is clear to all parties before ordering restitution beyond that alleged in the information. Because both parties lacked a clear understanding of what was meant by total victim restitution, this situation "can be most easily corrected by placing [Defendant and the State] in their original positions."
Id. ¶ 16 (alteration in original) (citation omitted). The situation here, however, is easily distinguishable. Perhaps most importantly, because of the death of the victim shortly before the filing of Gibson's motion to withdraw her plea, it is impossible to place the parties in their original positions. Further, in Bickley, the defendant had pleaded to the charges in count one of the information, which charged him with criminal nonsupport over a specific period of time. See id. ¶ 3. As part of restitution, however, he was ordered to pay child support arrearages for dates prior to those dates listed in the information. See id. ¶ 4. Because of this discrepancy, the Bickley court...
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