State v. Harvey

• Decision Date: 16 April 2015
• Docket Number: No. 20130466–CA.,20130466–CA.
• Citation: 348 P.3d 1199,2015 UT App 92
• Parties: STATE of Utah, Plaintiff and Appellee, v. Richie Charles HARVEY, Defendant and Appellant.
• Court: Utah Court of Appeals

348 P.3d 1199

2015 UT App 92

STATE of Utah, Plaintiff and Appellee

v.Richie Charles HARVEY, Defendant and Appellant.

No. 20130466–CA.

Court of Appeals of Utah.

April 16, 2015.

Jennifer Gowans Vandenberg, for Appellant.

Sean D. Reyes and Ryan D. Tenney, Salt Lake City, for Appellee.

Judge STEPHEN L. ROTH authored this Memorandum Decision, in which Judges JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN concurred.

Memorandum Decision

ROTH, Judge:

¶ 1 Defendant Richie Charles Harvey appeals from the district court's denial of his motion to withdraw his plea of no contest to aggravated assault, a third degree felony. Harvey first argues that the district court abused its discretion in determining that his plea was made knowingly and voluntarily. Second, he challenges the court's denial of his motion on the grounds of plain error and ineffective assistance of counsel. We affirm.

I. Harvey's Plea Was Knowing and Voluntary.

¶ 2 Harvey contends that his misunderstanding about his own criminal history renders his plea unknowing and involuntary. This case began when Harvey allegedly sexually assaulted a woman in 2010 and was subsequently charged with forcible sexual abuse, a second degree felony, and unlawful detention, a class B misdemeanor. After negotiations between the State and Harvey's counsel, the State agreed to drop the unlawful detention charge and convert the forcible sexual abuse charge to third degree aggravated assault if Harvey would plead no contest. Prior to the entry of Harvey's plea, defense counsel showed Harvey the matrix that Adult Probation and Parole (AP & P) employs as part of its process of developing recommendations to assist district courts in determining appropriate sentences for offenders. Counsel emphasized to Harvey that it was very important for him to tell her about “any conviction anywhere,” including convictions outside of Utah, so that she could give him the most accurate estimate possible of “what was likely to happen at sentencing” if he accepted the plea offer. Harvey identified a number of prior misdemeanor convictions but told counsel he had never been convicted of a felony. Based on this information, counsel advised Harvey that it was likely he “would do some jail time” but that a prison sentence was unlikely. However, she also told Harvey that there was a potential for a maximum sentence of zero to five years in prison and that she could make “no guarantees” about what Harvey's actual sentence would be.

¶ 3 Harvey accepted the State's offer and entered a no-contest plea to the third degree felony. Just before entering his plea, he signed a plea affidavit informing him, among other things, of the maximum sentence for the charge. The district court also conducted a plea colloquy and determined that Harvey had entered the plea knowingly and voluntarily. AP & P prepared a presentence investigation report (PSI) in anticipation of the sentencing hearing. As part of the PSI, AP & P calculated a criminal history assessment score for Harvey, which it then incorporated into the Utah Sentencing Commission's general matrix (the Sentencing Matrix). The Sentencing Matrix “compare[s] a defendant's ‘criminal history assessment’ score with the degree of the offense of which he ha[s] been convicted.” State v. Egbert, 748 P.2d 558, 561–62 (Utah 1987). The Sentencing Matrix “creates a starting point” for sentencing judges by “reflect[ing] a recommendation for a typical case,” but judges are not bound by the recommendations and are to take both “aggravating and mitigating circumstances” into account, along with other pertinent considerations, when making sentencing decisions. See Utah Sentencing Commission, 2014 Adult Sentencing and Release Guidelines 1, available at http://www.sentencing.utah.gov. The Sentencing Matrix itself includes the following statement at the top: “These are guidelines only. They do not create any right or expectation on behalf of the offender.” Harvey received a criminal history assessment score of nine points in the PSI, which placed him in criminal history category III. When viewed in conjunction with the third degree felony to which Harvey had pleaded no contest, Harvey's category III score produced a recommendation of “[i]ntermediate [s]anctions” on the Sentencing Matrix—i.e., jail time and probation rather than imprisonment. AP & P recommended, however, that the district court “make an[ ] upward departure from the sentencing guideline and sentence [Harvey] to prison.” AP & P based its prison recommendation on Harvey's extensive arrest record and the violent nature of his crimes, his continued blaming of the victim in this case, his minimization of his prior criminal history, and the agency's concerns for public safety.

¶ 4 At sentencing, Harvey's counsel requested a continuance so AP & P could correct errors counsel identified in the PSI. The motion was granted, and AP & P prepared an amended report. The corrections to the amended report reduced Harvey's criminal history score from nine points to eight, but the reduction did not move him into a different category on the criminal history scale and, accordingly, did not change the recommendation indicated by the Sentencing Matrix. And just as it had in the first PSI, AP & P recommended that the district court “make an[ ] upward departure from the sentencing guideline and sentence [Harvey] to prison” because of the various aggravating circumstances it had previously articulated.

¶ 5 Harvey obtained new counsel and filed a motion to withdraw his plea, contending that his plea was not knowing and voluntary because “he was under the impression that he would receive probation for his sentence” and he had been told by his prior counsel he would not go to prison. He filed a separate motion requesting that AP & P further review his criminal history and again amend the PSI. He argued, among other things, that one of the points allocated to him on the Sentencing Matrix was due to an out-of-state felony conviction he was “adamant” never occurred because he had “never spent a night in prison in any state, nor has he ever been put on parole.” If the felony were removed, Harvey's score would be reduced to seven points, placing him in category II with a recommendation of “[r]egular [p]robation” on the Sentencing Matrix. The district court denied Harvey's motion to withdraw his plea, stating,

It is clear from the record that Mr. Harvey was advised of the potential plea, the potential sentence. I told him myself on the record and he submitted a written statement in advance of pleading guilty that also indicates that he was advised of the potential sentence. So the idea that now he can suggest that if he had known there was any possibility of prison, he would not have entered his no-contest plea to me seems rather disingenuous.

The district court, however, granted Harvey's request for further clarification of the PSI.

¶ 6 Over the next year and a half, Harvey failed to appear for scheduled hearings, including a subsequent sentencing hearing, and warrants were issued for his arrest. In the meantime, AP & P produced a second amended PSI confirming, based on additional research, that Harvey did indeed have a felony conviction in Delaware. Harvey was eventually arrested for another assault and brought before the district court for sentencing. He continued to assert that the Delaware conviction was not a felony and asked the district court to sentence him to probation with credit for jail time already served. The district court, however, found that Harvey was not a good candidate for probation given the “horrendous” nature of the crime he had committed as well as his prolonged failure to appear for sentencing and his ongoing history of violent crimes. Instead, the court sentenced him to zero to five years in prison as AP & P and the State had recommended.¹

¶ 7 “A plea of guilty or no contest may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made.” Utah Code Ann. § 77–13–6(2)(a) (LexisNexis 2012) (the Plea Withdrawal Statute). A plea is knowing and voluntary “only if the defendant is ‘fully aware of the direct consequences' of his plea.” State v. Trotter, 2014 UT 17, ¶ 9, 330 P.3d 1267 (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ). “A direct consequence is one that will have a definite, immediate and largely automatic effect on the range of the defendant's punishment such as lack of eligibility for parole.” Id. (citation and internal quotation marks omitted). Both defense counsel and the district court have a responsibility to “ensure a defendant is aware of the direct consequences of his or her plea.” Id. Harvey argues that “he did not understand his criminal history and thus how it would impact the [Sentencing] [M]atrix.” He contends that, as a result, his plea was not knowing and voluntary because he was not fully aware of its consequences. We conclude, however, that Harvey was appropriately made aware of the direct consequences of his plea.

¶ 8 “We review a trial court's denial of a motion to withdraw a guilty plea under an abuse of discretion standard, incorporating the clearly erroneous standard for the trial court's findings of fact made in conjunction with that decision.” State v. Lehi, 2003 UT App 212, ¶ 7, 73 P.3d 985 (citation and internal quotation marks omitted); see also State v. Knowlden, 2013 UT App 63, ¶¶ 1–2, 298 P.3d 691 (per curiam) (applying the same standard to a motion to withdraw a no-contest plea). We conclude that the district court did not abuse its discretion in refusing Harvey's request to withdraw his plea. There is ample record support for the district court's findings that both counsel and the district court made efforts to ensure that Harvey was “fully aware of the direct consequences of his plea.” See Trotter, 2014 UT 17, ¶ 9, 330 P.3d 1267 (citation and internal quotation marks omitted). While counsel predicted that Harvey's plea...