State v. Harper, 052920 UTCA, 20180024-CA

Docket Nº:20180024-CA, 20180250-CA
Opinion Judge:HARRIS, JUDGE.
Party Name:State of Utah, Appellee, v. Ernest Clayton Harper, Appellant.
Attorney:Ronald Fujino, Attorney for Appellant Sean D. Reyes and William M. Hains, Attorneys for Appellee
Judge Panel:Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
Case Date:May 29, 2020
Court:Court of Appeals of Utah

2020 UT App 84

State of Utah, Appellee,


Ernest Clayton Harper, Appellant.

Nos. 20180024-CA, 20180250-CA

Court of Appeals of Utah

May 29, 2020

Third District Court, Salt Lake Department The Honorable Katie Bernards-Goodman Nos. 161911938 and 131401036

Ronald Fujino, Attorney for Appellant

Sean D. Reyes and William M. Hains, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.



¶1 Ernest Clayton Harper (Harper) pled guilty to stalking his ex-girlfriend (Ex-Girlfriend), but attempted to withdraw that plea after entering it. The district court refused to allow Harper to withdraw his plea, and Harper now appeals, arguing that the court abused its discretion by denying his motion to withdraw, and that his attorney rendered ineffective assistance. We affirm.


¶2 In 2016, while Harper was on probation in another stalking case involving a different victim, Ex-Girlfriend reported to police that Harper had trespassed on her property, sent her hundreds of text messages, and threatened to post nude photos of her on the Internet. The State arrested Harper and charged him with stalking, a second-degree felony, [1] and criminal trespass, a class B misdemeanor. A few months later, Harper entered into a plea agreement with the State in which he agreed to plead guilty to the stalking charge and the State agreed to dismiss the criminal trespass charge. With regard to his eventual sentence, the plea agreement stated as follows: "The State agrees to a two-step 76-3-402 reduction if [Harper] compl[ies] 100% with all terms and conditions of AP&P probation."

¶3 At the plea hearing, Harper acknowledged that "the penalty of this guilty plea could . . . put [him] in prison," and the district court informed him that it could sentence him to prison even though "something less may be recommended." Harper also represented to the court that he was pleading guilty because he had actually committed the crime in question, and not just because he wanted to be released from jail. After a plea colloquy, the district court accepted Harper's plea, released him from jail pending sentencing, ordered Adult Probation and Parole (AP&P) to prepare a presentence report, and scheduled a sentencing hearing to take place a few weeks later.

¶4 AP&P completed its presentence report about a week before the scheduled sentencing hearing, and it recommended that Harper be sentenced to prison. Just a few days later, Harper filed a motion seeking to withdraw his plea, although in his motion he did not state the grounds upon which his motion rested; he informed the court that "an accompanying memorandum" would be filed at some point in the future. The district court then postponed the sentencing hearing.

¶5 In the meantime, on the same day Harper filed his motion to withdraw his plea, Harper's ex-wife (Ex-Wife) contacted police to report that Harper had refused to return their child (Child) after parent-time. When police tried to communicate with Harper about returning Child to Ex-Wife's care, they found him uncooperative, and later that day arrested him on suspicion of custodial interference. As two arresting officers were taking Harper into custody, he "became combative" and kicked one of the officers and head-butted the other. As a result of this incident, the State later charged Harper, in a new case, with two third-degree felony counts of "assault by prisoner."

¶6 Several months later, after obtaining new counsel, Harper filed a second motion to withdraw his plea, this time explaining that his "emotional instability prevented him from knowingly and voluntarily appreciating the full . . . consequences of his guilty plea." The new motion came accompanied by a sworn declaration in which Harper averred that his counsel at the time he entered the plea had told him he would get probation if he pled guilty, and that Harper did not know that AP&P would recommend prison.

¶7 The court held a hearing to consider Harper's motion. At that hearing, his attorney asserted that previous counsel had assured Harper "that he would get probation if he pled as charged," and argued that the language of the plea agreement- stating that the State would agree to a sentence reduction as long as Harper "compl[ies] 100% with all terms and conditions of AP&P probation"-would clearly "imply to someone, especially not legally trained," that "the State is agreeing that [Harper] will receive probation." In response, the prosecutor proffered that he and Harper's previous attorney "never talked about probation being agreed upon," and that if there had been an agreement for probation, any such agreement "would have been in the plea form." At the conclusion of the arguments, the court denied Harper's motion, noting that not only had it "told [Harper] . . . that prison was a potential here," but that Harper had "himself volunteered that he knew that this [plea] could put him in prison." The court also observed that Harper had filed the motion "only after he [found] out he ha[d] a prison recommendation [from AP&P], which is not a legitimate reason to withdraw a plea."

¶8 A few months later, after another change of counsel, Harper appeared at a hearing at which, among other things, the court was to determine Harper's sentence on the stalking charge. At the beginning of that hearing, Harper pled guilty to one class A misdemeanor count of assault by prisoner related to his actions upon being arrested for custodial interference. Later during that same hearing, the court heard argument regarding Harper's sentence on the stalking charge, and Harper's new attorney offered several reasons why Harper should be afforded the opportunity of probation, including that the language of the plea agreement appeared to indicate that probation would be part of the sentence. The State, a representative of Ex-Girlfriend, and AP&P all urged the court to send Harper to prison. After considering the arguments, the court sentenced Harper to a one-to-fifteen-year prison term on the stalking charge.


¶9 Harper now appeals, and asks us to consider two issues.2First, he challenges the district...

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