State v. Jennings
| Decision Date | 16 May 1994 |
| Docket Number | No. 930604-CA,930604-CA |
| Citation | 875 P.2d 566 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Jason W. JENNINGS, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Kelly B. Miles and Robert Froerer (argued), Public Defender Ass'n of Weber County, Ogden, for appellant.
Jan Graham, State Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen. (argued), Salt Lake City, for appellee.
Before BENCH, BILLINGS and GREENWOOD, JJ.
Defendant Jason Jennings appeals from his conviction of criminal solicitation to commit murder, in violation of Utah Code Ann. § 76-4-203 (Supp.1992), and attempted rape of a child, in violation of Utah Code Ann. §§ 76-5-402.1 and 76-4-101 (1990). Defendant argues that the trial court erred in not permitting him to withdraw his plea of no contest to the two charges of which he was convicted. 1 We affirm.
Defendant was originally charged with three counts of rape of a child, first degree felonies, in violation of Utah Code Ann. § 76-5-402.1 (1990). While awaiting trial, defendant was incarcerated in the maximum security area of Weber County Jail. On approximately November 24, 1992, defendant wrote a letter in which he apparently requested that the recipients of the letter kill 2 the three children who were scheduled to testify Defendant filed a motion to suppress the letter, arguing that Eskelson's practice of reading all outgoing mail violated his first and fourth amendment rights. The trial court denied this motion on the grounds that the procedure followed by Eskelson was constitutionally reasonable.
against him. Defendant then sealed the letter and left it for collection. The corrections officer on duty, Lonnie Eskelson, gathered defendant's letter along with all the other letters from the cellblock, and took them to the control room for inspection. It was Eskelson's practice to check all letters for contraband and to quickly scan the contents of the letters for threats to the security of the facility. As a result, defendant's letter was confiscated and defendant was subsequently charged with three counts of criminal solicitation to commit murder.
On March 16, 1993, following a lengthy and detailed colloquy with the court, defendant entered pleas of no contest to one count of attempted rape and one count of criminal solicitation to commit murder. The remaining counts were dismissed. Towards the end of the colloquy, the trial court instructed defendant, "[Y]ou understand that if you plead guilty today and then later change your mind and want to have a trial, that you have to file a petition to set aside these guilty pleas within 30 days or you've lost your right to ask." Defendant responded, "Yes." The trial court asked if defendant had discussed with his attorney all aspects of his decision to enter pleas of no contest and defendant again responded affirmatively. The trial court verified this with defendant's attorney, who replied, "It is, and I feel that he is making a--the best decision available to us at this time."
Before sentencing and within thirty days of his pleas, defendant filed a motion to withdraw his no contest pleas on the grounds that: (1) at least one of the witnesses whom he had been unable to locate prior to trial was now available to testify on his behalf, (2) he did not understand the consequences of his pleas due to poor memory and comprehension abilities, and (3) it was his understanding from the colloquy with the court that he had the right to withdraw his pleas within thirty days.
At the hearing on defendant's motion to withdraw his no contest pleas, one of the newly located witnesses was present. Defendant's counsel represented to the court that this witness would testify on defendant's behalf on two of the three original rape charges as well as the solicitation charge. The trial court expressed its concern that defendant's motion was one more example of his continuing efforts to manipulate the judicial system. However, the trial court also stated:
There are two sides of this that the Court is considering seriously. The first relates to, you know, the witness situation. And I guess I'll have to accept your representation, Mr. Froerer, that you felt these [three] people would not be available. And that may very well have been a factor in the negotiating process.
Finally, the trial court considered the impact of allowing withdrawal of the pleas on the alleged victims:
While there hasn't been a specific allegation of prejudice, I think the prejudice is implicit, that you have three young ladies who are brought to a very short period of time before trial feeling that they have to come and testify, the case is negotiated and--and then some time later, some weeks later, they are called upon, once again, to go through the whole trauma again of once again preparing themselves mentally to have to go to trial.
I think with reference to girls of 13 and 14, even though they--the allegations are being made that they're relatively mature physically, I'm not sure that that's a--I'm not sure that the Court would be justified in putting them through that kind of a traumatic situation.
The trial court then denied the motion, ruling that defendant had intelligently entered into the no contest pleas and upon the advice of competent counsel, and that defendant had voluntarily and knowingly waived his constitutional rights. The trial court later sentenced defendant, and this appeal followed.
On appeal, defendant challenges the trial court's refusal to permit him to withdraw his no contest pleas on three grounds: (1) defendant alleges that he entered the pleas under
the mistaken impression that he could withdraw these pleas as a matter of right, (2) defendant argues that the trial court erred by considering the impact on the child victims of permitting defendant to withdraw his no contest pleas, and (3) defendant claims that the trial court did not strictly comply with Rule 11 of the Utah Rules of Criminal Procedure by omitting to specify in the colloquy the elements of the crimes to which he pleaded no contest. 3
A plea of no contest may be withdrawn "only upon good cause shown and with leave of the court." Utah Code Ann. § 77-13-6(2)(a) (1990). This court will not disturb the trial court's denial of the motion to withdraw the no contest pleas unless it clearly appears that the trial court abused its discretion. State v. Trujillo-Martinez, 814 P.2d 596, 599 (Utah App.1991), cert. denied, 843 P.2d 516 (Utah 1992). The trial court has abused its discretion as a matter of law if it does not permit a defendant to withdraw a plea that was not made in strict compliance with Rule 11 of the Utah Rules of Criminal Procedure. State v. Smith, 812 P.2d 470, 476 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992). "The purpose of Rule 11(5) and (7) is to assure that a plea of guilty or no contest is knowing and voluntary." Id. A motion to withdraw a plea made prior to sentencing should generally be liberally granted, provided good cause is shown. State v. Gallegos, 738 P.2d 1040, 1042 (Utah 1987); State v. Thorup, 841 P.2d 746, 747 (Utah App.1992), cert. denied, 853 P.2d 897 (Utah 1993).
Defendant's argument, that he mistakenly thought that permission to withdraw a guilty plea is automatically granted provided the motion is timely, is not substantiated by the record. Defendant's statement, submitted in connection with his no contest pleas, includes the following: "I understand that I may request to withdraw a plea of guilty within 30 days of entry of the plea but if said request is not made within 30 days I forfeit this right." Further, as part of the colloquy with the trial court, the court stated: "And you understand that if you plead guilty today and then later change your mind and want to have a trial that you have to file a petition to set aside those guilty pleas within 30 days or you've lost your right to ask." (Emphasis added.) Based on the record and the trial court's advantaged position to assess defendant's credibility, we cannot say the trial court abused its discretion by refusing to find that defendant had misunderstood the proceedings to an extent that would justify setting aside his pleas.
Defendant also argues, without elaboration, that the trial court impermissibly based its denial of his motion to withdraw the plea on the court's desire to avoid subjecting the minor victims to the trauma of a trial. Defendant, however, fails to provide any authority or analysis for this proposition in contravention of Rule 24(a)(9) of the Utah Rules of Appellate Procedure. 4 Defendant's lack of citation to legal authority is compounded by his failure to provide any analysis of his claim. For example, his assertion before the trial court that new evidence was An additional impediment to our consideration of this issue is the fact that it was not asserted before the trial court. Ordinarily, the failure to raise an issue before the trial court precludes its consideration on appeal, absent a claim of exceptional circumstances or plain error. State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987), on subsequent appeal, 779 P.2d 1133 (Utah 1989); State v. Brown, 856 P.2d 358, 359-60 (Utah App.1993). Defendant has not asserted exceptional circumstances or plain error on appeal. We therefore decline to consider this issue for the first time on appeal. State v. Sepulveda, 842 P.2d 913, 917-18 & n. 5 (Utah App.1992).
available pertaining to his guilt or innocence is not briefed on appeal, thereby foregoing any development of a possible relationship between consideration for the victims and this new evidence. See State v. Gallegos, 738 P.2d 1040, 1042 (Utah 1987) ().
Lastly, defendant claims that the trial court did not comply with Rule 11 of the Utah Rules of Criminal Procedure and the requirements set...
To continue reading
Request your trial
-
State v. Blubaugh
...be used against them in court." The latter claim is waived because defendant did not make this objection at trial. State v. Jennings, 875 P.2d 566, 570 (Utah App.1994). As for the claim that the narrative of the officer was hearsay, the trial court ruled it was an exception to the hearsay r......
-
State in Interest of R.N.J.
...appellate court for us to consider the appealed issue under the plain error or exceptional circumstances analysis. See State v. Jennings, 875 P.2d 566, 570 (Utah App.1994). The mother has not argued these exceptions on Failure to argue plain error or exceptional circumstances is usually fat......
-
State v. Brocksmith
...of that plea. State v. Smith, 812 P.2d 470, 476 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992); see also State v. Jennings, 875 P.2d 566, 569 (Utah App.1994) (holding that trial court has abused discretion as matter of law if it does not permit withdrawal of plea not made in stric......
-
State v. Bujan
...circumstances," and failed to provide any supporting authority or caselaw on appeal. Id. at ¶ 35 n. 5. Likewise, in State v. Jennings, 875 P.2d 566 (Utah Ct.App.1994), we refused to consider a defendant's arguments when he provided "absolutely no legal analysis or authority" for his claims.......
-
Views from the Bench
...1996); Phillips v. Hatfield, 904 P.2d 1108 (Utah Ct. App. 1995); Debry v. Cascade Enters, 879 P.2d 1353 (Utah 1994); State v. Jennings, 875 P.2d 566 (Utah Ct. App. 1994); State v. Harry, 873 P.2d 1149 (Utah Ct. App. 1994); State v. Jiron, 866 P.2d 1249 (Utah Ct. App. 1993); Baker v. Baker, ......