State v. Littlejohn

• Decision Date: 09 July 2021
• Docket Number: No. 20200224-CA,20200224-CA
• Parties: STATE of Utah, Appellee, v. Lance Scott LITTLEJOHN, Appellant.
• Court: Utah Court of Appeals

496 P.3d 726

STATE of Utah, Appellee,

v.Lance Scott LITTLEJOHN, Appellant.

No. 20200224-CA

Court of Appeals of Utah.

Filed July 9, 2021

K. Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes, Salt Lake City, John J. Nielsen, and Carissa Uresk, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

Opinion

HARRIS, Judge:

¶1 Lance Scott Littlejohn pled guilty to three third-degree felonies, including aggravated assault, an offense he committed while under court supervision for a previous aggravated assault against the same victim. The district court sentenced Littlejohn to prison, and he now appeals, asserting not only that the sentence itself was an abuse of the court's discretion, but also that his attorney rendered constitutionally ineffective assistance at both the plea hearing and at sentencing, and that the court committed plain error in accepting his guilty plea. We reject Littlejohn's arguments, dismiss part of his appeal, and affirm his sentence.

BACKGROUND

¶2 In November 2019, Littlejohn and his wife (Wife) were in a car together, with Littlejohn driving. The two of them were arguing, and Wife was "crying and ask[ing] to be let out of the vehicle" but Littlejohn refused. Wife was able to call 911, and during the call Littlejohn could be heard in the background telling Wife, "I told you never to hit me. I told you I'd never hit you if you didn't hit me first. I've kept to my promise. You [expletive] hit me first." Police attempted to stop the vehicle, but perceived that Littlejohn was trying to elude them; he was driving recklessly and, according to Wife, was threatening to crash the car on purpose, telling her that he "was not going to be caught and do another two and a half years." At one point, Littlejohn slammed on the brakes, causing Wife to hit the dashboard. When Littlejohn finally stopped, police observed that Wife had blood running from her nose. Related to these events, the State charged Littlejohn with kidnapping, a second-degree felony; domestic assault, a class B misdemeanor; and reckless driving, also a class B misdemeanor.

¶3 At the time of these events, Littlejohn was under court supervision related to a previous assault he committed against Wife. In that incident, which occurred just over a year earlier, Littlejohn and Wife had a dispute about their plans for the evening: Littlejohn wanted to work on a computer, and Wife wanted to watch movies. The argument quickly escalated into a physical altercation resulting in Littlejohn throwing a computer tower at Wife, grabbing Wife's face and causing her nose to bleed, and holding her in a headlock until she lost consciousness. When police arrived, they observed that "the apartment ... appeared as though a bomb had gone off inside," with broken glass and fresh blood on the ground. As a result of these events, Littlejohn pled guilty to attempted aggravated domestic assault (a class A misdemeanor) and possession of a controlled substance¹ (also a class A misdemeanor), but the court in that case agreed to hold the plea in abeyance pending a twenty-four-month supervision period. Littlejohn was in the midst of that supervision period in November 2019, when the incident in the car took place.

¶4 Following the November 2019 incident, Littlejohn was taken into custody at the county jail, and the court issued a pretrial protective order prohibiting Littlejohn from "directly or indirectly contacting, harassing, telephoning, mailing, e-mailing, or communicating in any way with" Wife. A few weeks later, however, jail officials discovered that Littlejohn had been telephoning Wife through another inmate's account and had been trying to "coerce [her] into changing her statement regarding the incident" in the vehicle. These efforts had apparently been somewhat successful, as evidenced by Wife contacting police "requesting to change her statement." Related to these events, the State charged Littlejohn with five additional third-degree felonies: four counts of violation of a pretrial protective order and one count of witness tampering.

¶5 A few weeks later, Littlejohn and the State entered into a plea agreement. Under the terms of that agreement, Littlejohn agreed to plead guilty to three third-degree felonies: one count of aggravated assault (filed pursuant to an amended information) relating to the car incident, and two counts—one for violating the pretrial protective order and one for witness tampering—relating to the jail phone calls. In exchange, the State agreed to dismiss all remaining charges stemming from those two incidents. In addition, Littlejohn stipulated to the court setting aside his plea in abeyance, and to the entry of his misdemeanor guilty pleas, in the previous assault case.

¶6 Before accepting the guilty plea, the district court engaged in a lengthy colloquy with Littlejohn. The court specifically asked Littlejohn if he was "under the influence of any controlled substance, even if it's something that might be prescribed to you that would interfere with your ability to understand what we're doing today," to which Littlejohn answered, "No, sir." The court informed Littlejohn that, at sentencing, he could be sentenced to prison, and Littlejohn confirmed that he understood that. The court also informed Littlejohn that he had the right to seek withdrawal of his plea, but that he must seek that relief before sentence was imposed, to which Littlejohn also affirmatively responded that he understood. Finally, Littlejohn signed a written plea agreement incorporating much of the same information. Following entry of the plea, the court released Littlejohn from custody and modified the protective order to allow Littlejohn to contact Wife. The court scheduled a sentencing hearing to take place a few weeks later.

¶7 In the meantime, Littlejohn was screened for possible participation in the local mental health court, a specialty court for individuals with diagnosed mental illnesses which is designed to address not only the crime committed, but also the underlying mental health condition that may have contributed to its commission. See Mental Health Court FAQs , National Alliance on Mental Illness: Utah, https:namiut.org/resources/item/516-mental-health-court-faqs [https://perma.cc/6UC3-FHSJ] [hereinafter FAQs ]; see also E. Lea Johnston, Theorizing Mental Health Courts , 89 Wash. U. L. Rev. 519, 521 (2012) [hereinafter Johnston, Theorizing ]. Like forty-two other states, Utah has created mental health courts in many of its judicial districts. See Mental Health Courts Operating in Utah , https://le.utah.gov/interim/2016/pdf/00002566.pdf [https://perma.cc/M3D6-BG6T]; see also E. Lea Johnston & Conor P. Flynn, Mental Health Courts and Sentencing Disparities , 62 Vill. L. Rev. 685, 686 (2017) (stating that forty-three states use mental health courts). To qualify for mental health court in Utah, an offender must be diagnosed with a specific categorized mental disorder, and the crime in question must not have been a violent crime involving "significant bodily injury" or (in most cases) a sexual crime. FAQs ; see also Johnston, Theorizing , at 566 n.263 ("Mental health courts as they are currently formulated accept only the good risks. Cases are limited to those where the crimes are minor and the risk of violence minimal." (quotation simplified)). Prior to entering mental health court, the offender must plead guilty to the offense in question, but the sentence is then suspended while the offender participates in a rigorous treatment program supervised by prosecutors and professional treatment providers and involving weekly status hearings in court. See FAQs . If the offender successfully completes the program, the offender receives a reduced sentence or even dismissal of the charges; if the offender fails to complete the program, the conviction is entered and sentence imposed. See id. The goal of mental health court is to reduce recidivism and incarceration of mentally ill offenders by safely and properly addressing the underlying issues that contributed to participants’ criminal activity. See id. Mental health courts have been successful; studies show that mental health court participants (regardless of whether they completed the program) show a "substantial" reduction in recidivism more than one year after initial enrollment. See Dale E. McNiel & Renee L. Binder, Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence , 164 Am. J. Psychiatry 1395, 1401 (2007).

¶8 Given his history, Littlejohn was a credible candidate for mental health court. In the fall of 2019, while under court supervision related to the domestic assault plea in abeyance, Littlejohn underwent a "combined substance use and mental health assessment" with a licensed behavioral health therapist. The evaluator's report from that assessment (the Assessment Report) is not included in the record submitted to us. But the record does include another health professional's brief summary of the Assessment Report's content. According to the summary, the Assessment Report indicated that Littlejohn was diagnosed with post-traumatic stress disorder

(PTSD), panic disorder, and "psychoactive substance-induced disorder," and recommended that Littlejohn undergo weekly individual therapy, couples counseling with Wife, and medication management. While in custody following the November 2019 incident, Littlejohn continued to meet with mental health professionals and pursue treatment; in particular, he "attended jail group and started medication management with the med team at the jail." Even after release following entry of the plea, Littlejohn continued to pursue mental health treatment, including individual therapy sessions, and one treatment provider opined that Littlejohn was "making progress and gaining stability." At some point prior to the scheduled sentencing hearing, those in charge of the local mental health c...