State v. Lehi, 20020590-CA.

• Decision Date: 26 June 2003
• Docket Number: No. 20020590-CA.,20020590-CA.
• Citation: 73 P.3d 985,2003 UT App 212
• Parties: STATE of Utah, Plaintiff and Appellee, v. Edwin Birdhand LEHI, Defendant and Appellant.
• Court: Utah Court of Appeals

73 P.3d 985

2003 UT App 212

STATE of Utah, Plaintiff and Appellee, v. Edwin Birdhand LEHI, Defendant and Appellant.

No. 20020590-CA.

Court of Appeals of Utah.

June 26, 2003.

Kristine M. Rogers, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before BILLINGS, Associate P.J., ORME, and THORNE, JJ.

OPINION

ORME, Judge:

¶ 1 Defendant appeals the trial court's denial of his motion to withdraw his guilty plea to the charge of Driving Under the Influence of Alcohol (DUI). We reverse.

BACKGROUND

¶ 2 Defendant was charged with DUI (with two prior convictions), a violation of Utah Code Ann. § 41-6-44 (Supp.2000);¹ Driving on Suspended or Revoked Operator's License, a violation of Utah Code Ann. § 53-3-227(3)(a) (1998); and Driving Without Registration, a violation of Utah Code Ann. § 41-1a-1303(1) (Supp.1998). The information described the DUI offense, which is the only offense at issue in this appeal, as follows:

[O]n or about 8-25-2000, the defendant did operate or was in actual physical control of a vehicle, and

(i) had sufficient alcohol in his body that a chemical test given within two hours of the alleged operation or physical control showed that the defendant had a blood or breath alcohol concentration of .08 grams or greater; or (ii) was under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree which rendered the defendant incapable of safely operating a vehicle;

and the defendant has at least two or more prior convictions under Utah Code § 41-6-44 within six years of this violation.

¶ 3 At a preliminary hearing, two witnesses for the State—a convenience store manager who observed Defendant at the store for several minutes prior to his arrest and an investigating police officer—testified about Defendant's behavior at the time of the incident that led to his arrest. The store manager testified that Defendant's driving appeared to be very impaired while he was on the store property, he had great difficulty in maintaining his balance, his eyes were "glazed over," and "he was obviously way past anything reasonable." The police officer also testified to Defendant's lack of balance and added that Defendant's speech was "very slurred" and that he had a "[s]trong odor of alcohol." The officer further stated that he asked Defendant to take a breathalyzer test, but Defendant refused.

¶ 4 Defendant entered into a plea agreement with the prosecutor, wherein Defendant agreed to plead guilty to the DUI charge. In exchange, the prosecutor agreed to recommend that the other two charges be dismissed and that Defendant be sentenced to ninety days in jail. Pursuant to this agreement, Defendant filed a plea affidavit with the trial court, which contained the following relevant provisions (handwritten portions are emphasized):

I have received a copy of the ... Information against me. I have read it, or had it read to me, and I understand the nature and the elements of crime[ ] to which I am pleading guilty....

The elements of the crime[ ] to which I am pleading guilty ... are:

ACTUAL PHYSICAL CONTROL OF A VEHICLE W/ BAC OF .08 OR GREATER W/ 2 OR MORE PRIOR DUI'S W/I 6 YEARS.

I understand that by pleading guilty I will be admitting that I committed the crimes listed above.... I stipulate and agree ... that the following facts describe my conduct and the conduct of other persons for which I am criminally liable. These facts provide a basis for the court to accept my guilty ... plea[ ] and prove the elements of the crime[ ] to which I am pleading guilty ...:

I WAS DRIVING MY CAR

I HAD BEEN DRINKING

I HAVE TWO PRIOR DUI'S W/I LAST 6 YEARS.

¶ 5 After Defendant filed his affidavit, the trial court conducted a plea colloquy with Defendant, which went, in part, as follows:

THE COURT: Mr. Lehi, did you read this [affidavit]?

MR. LEHI: Yes, Your Honor.

THE COURT: Did you understand what you read?

MR. LEHI: Yes.

THE COURT: Do you swear to me that these statements are the truth?

MR. LEHI: Yes, Your Honor.

THE COURT: I'm required to personally advise you that I do not have to follow any sentencing recommendation the prosecutor may have agreed to make and I can impose the maximum sentence of up to five years in prison; do you understand that?

MR. LEHI: Yes, Your Honor.

THE COURT: I also need to be sure that you are acting of your own free will. Are you?

MR. LEHI: Yes.

THE COURT: To the charge of Driving Under The Influence Of Alcohol With Two Previous Convictions, a Third Degree Felony, how do you plead?

MR. LEHI: Ah, guilty.

THE COURT: I find the defendant is aware of his legal and constitutional rights and that he has knowingly and voluntarily waived those rights and tendered those— this plea. I order that the plea be entered. The remaining counts are dismissed, pursuant to the plea agreement.

¶ 6 In accordance with the plea agreement, the prosecutor recommended to the trial court a sentence of ninety days in jail. However, when the trial court declined to follow the prosecutor's recommendation and instead sentenced Defendant "to a term in the Utah State Prison not to exceed five years," Defendant moved to withdraw his guilty plea on the ground that, among other things, it was taken in violation of rule 11(e)(4)(A) of the Utah Rules of Criminal Procedure.² The trial court denied his motion, and Defendant now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 7 The issue in this case is whether the trial court sufficiently ensured, in taking Defendant's guilty plea, that Defendant "underst[ood] the nature and elements" of the DUI charge, as required by rule 11(e)(4)(A) of the Utah Rules of Criminal Procedure. The Utah Supreme Court has set forth the following standard of review for rule 11 cases:

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. However, the ultimate question of whether the trial court strictly complied with constitutional and procedural requirements for entry of a guilty plea is a question of law that is reviewed for correctness.

State v. Holland, 921 P.2d 430, 433 (Utah 1996) (quoting State v. Blair, 868 P.2d 802, 805 (Utah 1993)).

GOVERNING LAW

¶ 8 The Utah Supreme Court requires trial courts to comply strictly with rule 11 in the taking of guilty pleas. See State v. Maguire, 830 P.2d 216, 217 (Utah 1992)

; State v. Gibbons, 740 P.2d 1309, 1312-14 (Utah 1987). Strict compliance, however, does not require trial courts to rely solely on the plea colloquy in ensuring that defendants understand their rights, see Maguire, 830 P.2d at 218 ("[S]trict compliance can be accomplished by multiple means [.]"), nor does it "relegate[courts] to rote recitation of the rule 11 elements" during the colloquy. State v. Abeyta, 852 P.2d 993, 996 (Utah 1993) (per curiam).

¶ 9 Rather, in determining whether a defendant understands his or her rule 11 rights, a trial court is allowed to rely, to a certain extent, upon plea affidavits and other documents, see, e.g., State v. Smith, 777 P.2d 464, 465-66 (Utah 1989),

so long as the court establishes on the record at the time the plea is entered that the defendant has read and understood those affidavits and documents. See Maguire, 830 P.2d at 217-18 & n. 2 (articulating this requirement as to plea affidavits and stating that other documents can also be used if they are "similarly incorporated into the record"); Gibbons, 740 P.2d at 1312-13 ("Rule 11(e) squarely places on trial courts the burden of ensuring that constitutional and Rule 11(e) requirements are complied with when a guilty plea is entered.... "There is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant's understanding of the nature of the charge against him.'") (emphasis in original) (quoting McCarthy v. United States, 394 U.S. 459, 470, 89 S.Ct. 1166, 1173, 22 L.Ed.2d 418 (1969)); State v. Mora, 2003 UT App 117, ¶¶ 19-20, 69 P.3d 838 (reiterating this requirement and holding that defendant's "affidavit was not properly incorporated into the record" because "the trial court made no inquiry into whether [defendant] had read, understood, and acknowledged the affidavit"). See also State v. Smith, 812 P.2d 470, 476-77 (Utah Ct.App.1991) (analyzing "the affidavit and colloquy together" since "the trial court carefully reviewed appellant's plea affidavit with appellant during the plea colloquy, and then incorporated the affidavit into the record of the plea hearing"), cert. denied, 836 P.2d 1383 (Utah 1992).³

¶ 10 However, such affidavits and other documents must be treated as "only the starting point.... The trial judge should [still] 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." Gibbons, 740 P.2d at 1313-14. Furthermore, "`[a]ny omissions or ambiguities in the affidavit must be clarified during the plea hearing.'" Maguire, 830 P.2d at 217 (quoting Smith, 812 P.2d at 477). Accord Mora, 2003 UT App 117

at ¶ 19, 69 P.3d 838.

ANALYSIS

¶ 11 Based on the above principles, we conclude that Defendant's plea affidavit was properly incorporated into the plea record. The trial court specifically asked Defendant if he had read and understood it, and Defendant replied that he had. The contents of the information filed against Defendant were also properly incorporated into the record, as Defendant acknowledged the information in his affidavit. See, e.g., State v. Penman, 964 P.2d 1157, 1161 (Utah Ct.App.1998)

(looking to information after acknowledging "the affidavits stated that [defendant] had received a copy of the information").

¶ 12 However, neither the plea colloquy nor the affidavit contains any...