State v. Hoff

• Decision Date: 03 July 1991
• Docket Number: No. 900096,900096
• Citation: 814 P.2d 1119
• Parties: STATE of Utah, Plaintiff and Appellee, v. Michael David HOFF, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1119

814 P.2d 1119

STATE of Utah, Plaintiff and Appellee, v. Michael David HOFF, Defendant and Appellant.

No. 900096.

Supreme Court of Utah.

July 3, 1991.

R. Paul Van Dam, Dan Larsen, Salt Lake City, for plaintiff and appellee.

Walter F. Bugden, Salt Lake City, for defendant and appellant.

STEWART, Justice:

Michael David Hoff appeals the denial of his motion to withdraw his guilty plea to the crime of attempted aggravated sexual abuse of a child, a first degree felony. See Utah Code Ann. § 76-5-404.1 (Supp.1984). The issue on this appeal is whether the district court erred in ruling that Hoff's plea was validly taken under Rule 11(5) of the Utah Rules of Criminal Procedure.

I.

In March 1985, Hoff was charged with one count of aggravated sexual abuse of a child. The probable cause statement attached to the information stated that in March 1985, a 13-year-old female reported to police that during the summer of 1984, Hoff had fondled her breasts and touched her vagina on numerous occasions and that Hoff subsequently admitted to Grantsville City police officers that he committed the alleged acts.

Hoff waived a preliminary hearing and was bound over to the district court for trial. At the arraignment on July 22, 1985, he entered a plea of guilty to the reduced charge of attempted aggravated sexual abuse of a child pursuant to a plea bargain agreement. The arraignment record discloses that defense counsel acknowledged that Hoff had a copy of the information and waived its reading. The trial judge explained to Hoff that by pleading guilty he gave up the right to a jury trial, to confront witnesses, to appeal if convicted, and to be proven guilty beyond a reasonable doubt. Hoff stated that he had discussed the matter with his attorney, that he was satisfied with his attorney's representation, and that he waived his rights. Hoff also acknowledged that he entered the plea knowingly and voluntarily. He then executed the plea affidavit and pleaded guilty.

The affidavit Hoff signed stated that he was entering a plea of guilty to the lesser offense of attempted aggravated sexual abuse of a child, that the charge was a first degree felony, and that he was entering the plea voluntarily after conferring with his attorney. The affidavit contained an acknowledgment that Hoff knew he had a right to a jury trial, to be represented by counsel, to be confronted by witnesses against him, to cross-examine such witnesses, to have witnesses subpoenaed on his own behalf at the State's expense, to testify in his own behalf or not to testify, to have the State prove each and every element of the crime beyond a reasonable doubt, to have a unanimous jury verdict if convicted, to invoke the privilege against self-incrimination, to appeal should he be convicted, and to have the State pay the costs of such an appeal should he be unable to do so. The affidavit also contained a statement that Hoff knew and understood that by entering a plea of guilty he waived those rights and that the maximum sentence possible for the crime was imprisonment in the Utah State Prison for a term of not less than five years nor more than life and/or a fine in an amount not to exceed $10,000. It stated that no promises had been made in return for the guilty plea and that no one had forced, threatened, or coerced Hoff to plead guilty. The affidavit further stated that Hoff was not under the influence of drugs or alcohol, that he had read the affidavit or that it had been read to him by his attorney, and that he knew and understood its contents. It recited that Hoff was 44 years of age, had obtained an associate of science degree, and could read and understand the English language. With respect to the facts which constituted the basis for the guilty plea, the affidavit recited that Hoff attempted

to touch the anus, buttocks, or genitalia of a child who was under the age of 14, or attempt[ed] to touch the breast of a female child who was under the age of 14, or otherwise attempted to take indicent [sic] liberties with myself, with intent to arouse or gratify the sexual desire of said child or of myself and that I, prior to committing said offense was previously convicted of a felony involving a sexual offense.

(Emphasis omitted.) On September 30, 1985, Hoff was sentenced to serve a term of incarceration of five years to life.

Hoff filed a motion to set aside his guilty plea four years later. On February 26, 1990, a district court judge denied the motion and stated: "The court ... is of the opinion that, taking the record as a whole, the arraigning court showed substantial compliance with Rule 11."

Hoff contends that the judge who took his plea was required to comply with Rule 11(5)(d) and (e) of the Utah Rules of Criminal Procedure and did not do so. ¹ Specifically Hoff asserts that he was not questioned by the judge concerning the nature and elements of the offense, that different references to the title of the offense to which he pleaded caused confusion as to the crime involved, and that the trial judge failed to advise him on the record of the minimum and maximum sentences which could be imposed. The State contends that substantial compliance with Rule 11(5) is sufficient, that strict compliance is not necessary, and that Hoff's plea was taken in substantial compliance with Rule 11(5) and was knowingly and voluntarily entered.

II.

Hoff moved to withdraw his guilty plea pursuant to Utah Code Ann. § 77-13-6(2)(a) (1990), which states: "A plea of guilty or no contest may be withdrawn only upon good cause shown and with leave of the court." Hoff contends that he should have been allowed to withdraw his guilty plea because the judge who accepted his plea did not comply with the requirements of Rule 11. He argues that there was neither strict compliance as required by State v. Gibbons, 740 P.2d 1309 (Utah 1987), nor substantial compliance as required by pre-Gibbons cases.

Gibbons mandated that trial courts strictly comply with the requirements of Rule 11(5) in taking guilty pleas and held that Rule 11(5) "squarely places on trial courts the burden of ensuring that constitutional and Rule [11(5) ] requirements are complied with when a guilty plea is entered." 740 P.2d at 1312. We stated:

It is not sufficient to assume that defense attorneys make sure that their clients fully understand the contents of [an] affidavit.

The use of a sufficient affidavit can promote efficiency, but an affidavit should be only the starting point, not an end point, in the pleading process.... The trial judge should then review the statements in the affidavit with the defendant, question the defendant concerning his understanding of it, and fulfill the other requirements imposed by [Rule 11] on the record before accepting the guilty plea.

740 P.2d at 1313-14. The rule announced in Gibbons was intended to ensure that the record demonstrates that the judge who takes the plea personally establishes that a defendant's guilty plea is truly knowing and voluntary. To that end, Gibbons requires that at the time a guilty plea is entered the judge should establish on the record that the defendant knowingly waived his or her constitutional rights and understood the elements of the crime. "[T]he more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas." McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). See also Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

On the record in this case, it is clear that the judge who accepted Hoff's plea did not strictly comply with Rule 11(5). The issue that now arises is, therefore, whether the pre-Gibbons substantial compliance standard applies and, if so, whether Hoff's plea was taken in substantial compliance with Rule 11(5).

Prior to our decision in Gibbons, a guilty plea was valid and could not be withdrawn if the trial court demonstrated substantial compliance with Rule 11. See State v. Miller, 718 P.2d 403, 405 (Utah 1986); State v. Kay, 717 P.2d 1294, 1299-1302 (Utah 1986); Warner v. Morris, 709 P.2d 309, 310 (Utah 1985); Brooks v. Morris, 709 P.2d 310, 311 (Utah 1985); State v. Vasilacopulos, 756 P.2d 92, 94-95 (Utah Ct.App.1988), cert. denied, 765 P.2d 1278 (Utah 1988).

In cases decided after Gibbons involving guilty pleas entered before the issuance of Gibbons, we have applied the pre-Gibbons substantial compliance standard. See, e.g., Jolivet v. Cook, 784 P.2d 1148, 1149-51 (Utah 1989), cert. denied, 493 U.S. 1033, 110 S.Ct. 751, 107 L.Ed.2d 767 (1990) (guilty plea entered February 7, 1985); State v. Hickman, 779 P.2d 670, 672 (Utah 1989) (guilty plea entered January 1985); State v. Copeland, 765 P.2d 1266, 1273-75 (Utah 1988) (guilty plea entered July 28, 1986); State v. Mildenhall, 747 P.2d 422, 424 (Utah 1987) (guilty plea entered May 31, 1985). See also State v. Valencia, 776 P.2d 1332, 1334-35 (Utah Ct.App.1989) (as to guilty plea entered July 17, 1987, two and a half weeks after the issuance of Gibbons, strict compliance rule applied); State v. Vasilacopulos, 756 P.2d 92, 93-95 (Utah Ct.App.1988) (guilty plea entered February 17, 1984), cert. denied, 765 P.2d 1278 (Utah 1988).

The State argues that Gibbons did not change the standard for determining the validity of a guilty plea but that Gibbons only recommended "the best method of determining the voluntariness of a plea...." The State also argues that our cases subsequent to Gibbons have diminished the requirements of Gibbons. The State's arguments are incorrect on both counts.

First, Gibbons was indeed intended to change both the practice and the standard for taking guilty pleas. The practice of simply relying on defense attorneys and plea affidavits to explain...