State v. Hale, 2006 UT App 434 (Utah App. 10/19/2006)

• Decision Date: 19 October 2006
• Docket Number: Case No. 20050461-CA.
• Citation: 2006 UT App 434
• Parties: State of Utah, Plaintiff and Appellee, v. Joshua S. Hale, Defendant and Appellant.
• Court: Utah Court of Appeals

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2006 UT App 434

State of Utah, Plaintiff and Appellee, v. Joshua S. Hale, Defendant and Appellant.

Case No. 20050461-CA.

Court of Appeals of Utah.

Filed October 19, 2006.

(Not For Official Publication)

Appeal from the Third District, Sandy Department, 041400524 The Honorable Royal I. Hansen.

Elizabeth Hunt, Salt Lake City, for Appellant.

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.

Before Judges Bench, Greenwood, and Davis.

MEMORANDUM DECISION

DAVIS, Judge.

Defendant Joshua S. Hale appeals from a conviction for aggravated assault, a second degree felony, see Utah Code Ann. § 76-5-103 (2003), and a conviction for burglary, a second degree felony, see id. § 76-6-202 (2003). We affirm.

Defendant first appeals the trial court's denial of his motion to withdraw his guilty plea to aggravated assault, arguing that the trial court failed to comply with rule 11 of the Utah Rules of Criminal Procedure "because the legal elements and factual basis for the plea [were] inadequate." "In the context of rule 11 colloquies, the ultimate question of whether the trial court strictly complied with . . . procedural requirements for entry of a guilty plea is a question of law that is reviewed for correctness." State v. Hittle, 2004 UT 46,¶4, 94 P.3d 268 (quotations and citation omitted). When reviewing this issue, we may consider the plea colloquy and affidavit as well as other parts of the record. See Utah R. Crim. P. 11(k) ("Compliance with [rule 11] shall be determined by examining the record as a whole.");¹ State v. Corwell, 2005 UT 28,¶12, 114 P.3d 569 (holding that strict compliance with rule 11 may be accomplished through "questioning of the defendant on the record," "a plea affidavit," "contents of other documents" in the record, and defendant's "personal trial experience" (quotations and citations omitted)); State v. Visser, 2000 UT 88,¶12, 22 P.3d 1242 (holding that strict compliance with rule 11 "can be accomplished by multiple means, including the contents of other documents such as the information, presentence reports, [and] exhibits" (quotations and citation omitted)).

Defendant argues that the legal elements of his aggravated assault plea were inadequate because the required element of intent was missing. Under rule 11(e)(4)(A), a trial court may not accept a guilty plea unless "the defendant understands the nature and elements of the offense." Utah R. Crim. P. 11(e)(4)(A); see also State v. Stilling, 856 P.2d 666, 671 (Utah Ct. App. 1993) (stating that plea-taking proceedings governed by rule 11(e) "must demonstrate that the defendant understands the nature of each element of the offense charged"). And although a trial court has a duty of strict compliance with rule 11(e), strict compliance does not require a trial court to follow a "particular script or any other specific method of communicating" the requirements of that rule. Corwell, 2005 UT 28 at ¶12 (quotations and citation omitted); see also Visser, 2000 UT 88 at ¶11. Therefore, the test for whether a trial court strictly complies with rule 11(e) "is not whether the court recites the phrases found in that rule. Rather, the test is whether the record adequately supports the [trial] court's conclusion that the defendant had a conceptual understanding of each of the elements of rule 11(e)." Corwell, 2005 UT 28 at ¶18.

Here, Defendant pleaded guilty to aggravated assault, the elements of which are assault committed with the intent to cause serious bodily injury. See Utah Code Ann. § 76-5-103. The plea affidavit and the plea colloquy failed to include the necessary element of intent, but instead simply stated that Defendant committed an assault and caused serious bodily injury. However, during the plea hearing, the State informed the trial court that the parties had reached a plea agreement wherein the State would dismiss eight of the nine charges in the original information and add an additional charge of aggravated assault. The State then informed both the trial court and Defendant of the elements of such charge, stating that the amended information would charge that Defendant "intended to cause serious bodily injury" while committing an assault. Immediately thereafter, Defendant confirmed that he had no objection to the amended information and pleaded guilty. The trial court's failure to include the intent element in the plea affidavit and colloquy was not fatal because the elements of aggravated assault were correctly given to Defendant immediately before he pleaded guilty thereto. See Corwell, 2005 UT 28 at ¶12 (holding that strict compliance with rule 11(e) does not require a trial court to "follow a particular script or any other specific method of communicating" the requirements of that rule (quotations and citation omitted)). We therefore hold that the trial court strictly complied with rule 11(e)(4)(A) in the entry of Defendant's plea to aggravated assault. See Utah R. Crim. P. 11(e)(4)(A).

Defendant also contends that there was no factual basis to support his guilty plea to the aggravated assault charge because he did not intentionally inflict harm upon the victim and because that harm did not amount to serious bodily injury. Under rule 11(e)(4)(B), a trial court may not accept a guilty plea unless "there is a factual basis for the plea." Utah R. Crim. P. 11(e)(4)(B). To satisfy the factual basis requirement,

the record must reveal either facts that would support the prosecution of a defendant at trial or facts that would suggest a defendant faces a substantial risk of conviction at trial. Thus, a sufficient factual basis requires that the record contain evidence that the crime was committed and that defendant likely committed the crime.

State v. Tarnawiecki, 2000 UT App 186,¶13, 5 P.3d 1222 (quotations and citation omitted); see also Utah R. Crim. P. 11(e)(4)(B) ("A factual basis is sufficient if it establishes that the charged crime was actually committed by the defendant. . . ."); Stilling, 856 P.2d at 672.

Here, the victim found Defendant burgling his motor home in the middle of the night. A confrontation ensued, during which the victim tore his rotator cuff when Defendant fell on top of him. Despite Defendant's contention that he did not intentionally hurt the victim, "a person is presumed to intend the natural and probable consequences of his acts." State v. Sisneros, 631 P.2d 856, 859 (Utah 1981) (quotations and citation omitted); see also State v. Colwell, 2000 UT 8,¶43, 994 P.2d 177 ("We have held that intent to commit a crime may be inferred from the actions of the defendant or from surrounding circumstances." (quotations and citation omitted)); 6 Am. Jur. 2d Assault &amp Battery § 78 (1999) ("The specific intent to cause serious bodily injury, as required to support an aggravated assault conviction, can be inferred from . . . the reasonable apprehension of bodily harm such an act produces in a victim."); 6A C.J.S. Assault § 95 (2004) (stating that accused may be held liable for injuries that are "the natural and probable consequence of the wrongful act"). Therefore, any argument that Defendant did not intend to injure the victim during the victim's struggle to protect his property is meritless. Furthermore, a torn rotator cuff—which required surgery, caused significant pain, and took over a year to heal— could certainly be considered serious bodily injury under Utah law. See Utah Code Ann. § 76-1-601(10) (2003) (defining serious bodily injury as "bodily injury that creates or causes . . . protracted loss or impairment of the function of any bodily member or organ"); State v. Leleae, 1999 UT App 368,¶20, 993 P.2d 232 ("[A] broken jaw that is wired shut for six weeks with resulting eating difficulties, weight loss, extraction and later replacement of a tooth, and continuing pain is a `protracted loss or impairment of the function of [a] bodily member.'" (second alteration in original) (quoting Utah Code Ann. § 76-1-601(10) (1999))).² Because "the record contain[ed] evidence that the crime [of aggravated assault] was committed and that [D]efendant likely committed the crime," Tarnawiecki, 2000 UT App 186 at ¶13, the factual basis for Defendant's guilty plea for such crime was adequate. We therefore hold that the trial court strictly complied with rule 11(e)(4)(B) when entering Defendant's guilty plea for aggravated assault. See Utah R. Crim. P. 11(e)(4)(B). ³

Second, Defendant appeals the trial court's denial of his motion to withdraw his guilty plea to burglary, arguing that his attorney was ineffective because he failed to inform Defendant of certain defense strategies thereto. "To prevail on a claim of ineffective assistance of counsel, [a defendant] must show that (1) trial counsel's performance was objectively deficient and (2) there exists a reasonable probability that absent the deficient conduct, the outcome would likely have been more favorable to [the defendant]." State v. Mecham, 2000 UT App 247,¶21, 9 P.3d 777. "The failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." State v. Whittle, 1999 UT 96,¶34, 989 P.2d 52 (quotations, citation, and alteration omitted).

All of the defense strategies proposed by Defendant would have been futile if raised. Defendant first alleges that the burglary he perpetrated upon the victim's motor home was at most burglary of a vehicle, a class A misdemeanor. See Utah Code Ann. § 76-6-204 (2003). But under Utah Code section 76-6-202, burglary is a second degree felony if "it was committed in a dwelling," id. § 76-6-202(2), and a dwelling is defined as "a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present," id. § 76-6-201(2) (2003). "The term `usually occupied' refers to the purpose for which the structure is used. If the structure is one in which people typically stay overnight, it fits within the definition of dwelling...