State v. Martinez, 990713.

• Citation: 2001 UT 12,26 P.3d 203
• Decision Date: 09 February 2001
• Docket Number: No. 990713.,990713.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Johnny Anthony MARTINEZ, Defendant and Appellant.
• Court: Supreme Court of Utah

26 P.3d 203

2001 UT 12

STATE of Utah, Plaintiff and Appellee, v. Johnny Anthony MARTINEZ, Defendant and Appellant.

No. 990713.

Supreme Court of Utah.

February 9, 2001.

Rehearing Denied June 18, 2001.

Mark Shurtleff, Att'y Gen., Catherine M. Johnson, and Erin Riley, Asst. Att'ys Gen., Salt Lake City, for plaintiff.

Scott L. Wiggins, Salt Lake City, for defendant.

WILKINS, Justice:

¶ 1 On advice of counsel, defendant Johnny Anthony Martinez pleaded guilty to first degree murder. He later moved the district court to allow him to withdraw his guilty plea. After a hearing on the matter, the district court denied defendant's motion. Defendant appeals, claiming that he was denied the effective assistance of counsel and that his guilty plea was not knowing and voluntary. We affirm.

BACKGROUND

¶ 2 As a result of the death of three-year-old Orlando Chacon, defendant was charged with two first degree felonies: murder, Utah Code Ann. § 76-5-203(1)(b) & (c) (1999), and aggravated sexual abuse of a child, Utah Code Ann. § 76-5-404.1 (1999). At arraignment defendant pleaded not guilty, a trial date was set, and a pre-trial hearing was scheduled. In the course of negotiations, the State offered to dismiss the charge of aggravated sexual abuse if defendant agreed to plead guilty to the first degree murder charge.

¶ 3 Prior to the pre-trial hearing, defendant and his appointed counsel, Glen T. Cella, met and discussed the State's offer. Cella advised defendant that if he pleaded guilty to the first degree murder charge, he could file a motion requesting that the murder conviction be reduced to a second degree felony pursuant to section 76-3-402 of the Utah Code. Defendant later testified that Cella informed him that he had a "good fifty-fifty chance" of having the conviction reduced; but he couldn't promise anything, and it was the judge's decision whether to grant the motion.

¶ 4 At the January 21, 1997 pretrial hearing, defendant indicated that he wished to change his plea because he intended to enter into a plea agreement with the State. The court confirmed the nature of the plea offer with the State, Cella, and defendant, and then questioned defendant. In the colloquy between the court and defendant, the court informed defendant of, and defendant acknowledged that he understood, the following: (1) the possible penalty of five years to life in prison for first degree felony murder, (2) the right against self-incrimination, (3) the right to a jury trial and that the matter was set for trial, (4) the burden at trial would be on the State to prove defendant's guilt, (5) the right to testify, (6) the right to compel the attendance of witnesses, and (7) the right to confront and cross-examine witnesses. The court also told defendant, and defendant indicated that he understood, that (8) if he were convicted at trial he had the right to appeal, (9) if he pleaded guilty he would be giving up the rights explained, and (10) if he pleaded guilty he would only be able to challenge whether the plea was knowing and voluntary on appeal. Finally, the court asked defendant if he was pleading guilty because he felt he was guilty, and if he was entering his plea of his own free will and choice. Defendant responded affirmatively to both questions. The court then asked defendant if anyone made any promises to him regarding what sentence would be imposed, to which defendant replied no. The prosecutor then articulated the facts supporting the plea, including that defendant shook the child and that the child died of non-accidental trauma. Defendant admitted those facts, and the court found the facts to support a guilty plea.

¶ 5 The court also questioned defendant about the affidavit to be signed as part of the plea agreement. Defendant indicated that he understood the terms and conditions of the affidavit and plea agreement. He also acknowledged to the court that he read and discussed the affidavit with his counsel and that he still wished to enter into the plea agreement. Cella affirmed that he reviewed the affidavit with defendant and that defendant understood the terms and conditions, was competent, and that the agreement was supported by the evidence. Defendant executed the plea agreement in open court. The court reconfirmed with defendant that he still wished to plead guilty to the murder charge. The court then asked defendant for his plea to the charge of first degree murder, and defendant responded, "guilty." The court accepted the plea, finding it knowing and voluntary. The court also informed defendant that he had thirty days to request to withdraw his guilty plea; but he must show good cause, and it was the court's decision whether to grant a motion to withdraw.

¶ 6 The plea affidavit signed by defendant expressly states that defendant understood the facts that supported the elements of murder. Those facts include: that he committed an act clearly endangering the victim's life, he intended to cause serious bodily injury to the victim, he violently shook the victim, he did so intentionally and knowingly, and he caused the victim's death. In signing the affidavit, defendant also acknowledged, among other things, that he understood the nature and elements of first degree murder. Additionally, defendant acknowledged that he was "entering this plea voluntarily and with knowledge and understanding that [he was] waiving certain constitutional rights," and that he was admitting to the elements of the offense. His affidavit also admits that no promises were made regarding any sentencing recommendation, and that any sentencing recommendations from defense counsel or the State were not binding on the judge. His affidavit further notes, "I am satisfied with the advice and assistance of my attorney."

¶ 7 A week after defendant's guilty plea, defense counsel filed a motion requesting that defendant's conviction be reduced from first to second degree murder under section 76-3-402 of the Utah Code. On February 24, 1997, the prosecutor sent defense counsel a memo informing counsel that a murder conviction could no longer be reduced under section 76-3-402 and that the possibility of reducing the conviction "was, I am sure, a consideration for pleading guilty."

¶ 8 The next day, February 25, 1997, defendant was scheduled to appear for a sentencing hearing. Prior to the sentencing hearing, counsel and defendant met briefly in the holding cell where counsel informed defendant of his mistake. He told defendant that the advice was erroneous and that the first degree murder conviction could not be reduced to a second degree felony. During the five-to-ten minutes counsel spent with defendant, counsel also informed him that he could likely have his guilty plea withdrawn and proceed to trial.

¶ 9 At the sentencing hearing, Cella explained to the court that he misrepresented the law to defendant and thus provided him with erroneous advice. Specifically, counsel said that he incorrectly advised defendant that he could file a motion under section 76-3-402 to reduce the first degree murder charge to a second degree felony. Cella also explained, however, that he informed defendant of his mistake and told defendant that the law no longer allowed the murder conviction to be reduced. Utah Code Ann. § 76-3-406 (1999). Cella said that he told defendant that he could either proceed with sentencing or ask the court to permit him to withdraw his guilty plea. The court then asked defendant, following Cella's explanation, whether he still desired to proceed with sentencing. Defendant told the court that he wanted "to proceed." Counsel also stated, "We'd like to go ahead and be done with it today then, your honor." The district court sentenced defendant to a term of five years to life and ordered him to pay restitution for medical and funeral costs and a fine of $5,000, plus surcharge.

¶ 10 On March 31, 1997, defendant filed a notice of appeal. He later moved this court to have the case remanded to the district court to request permission to withdraw his guilty plea. We granted defendant's motion and remanded the case.

¶ 11 Defendant accordingly filed a motion to withdraw his guilty plea, claiming his plea was not knowing and voluntary. The district court conducted a hearing on defendant's motion. At the hearing, defendant testified that he relied on the possibility that he could have his conviction reduced, and even though he knew it wasn't guaranteed, the possibility influenced him to plead guilty. He testified that he "didn't want to go through a trial because [he] didn't want to put [the victim's mother] ... through the emotion and ... the hurt." He also confirmed that his decision not to ask the court to withdraw his guilty plea at sentencing was a conscious decision because he did not wish to hurt the victim's mother.

¶ 12 At the hearing on defendant's motion to withdraw his plea, Cella testified that he thought defendant was competent, understood the terms and conditions of the plea agreement, and that the agreement was supported by the evidence. Cella also testified that even if he would have known the law no longer permitted a motion to reduce a murder conviction, he still would have advised defendant to enter into the plea agreement.

¶ 13 The district court denied defendant's motion to withdraw his guilty plea, determining that defendant's guilty plea was knowing and voluntary and that he "knowingly and intentionally declined to file any motion to withdraw his plea and voluntarily elected to proceed with the sentencing." The court also determined that counsel was not deficient or ineffective. Defendant appeals, presenting two arguments: (1) that he was denied the effective assistance of counsel, and (2) that his guilty plea was not knowing and voluntary.

STANDARD OF REVIEW

¶ 14 The denial of a motion to withdraw a guilty plea is reviewed under an abuse of discretion standard, incorporating a clearly erroneous standard for findings of fact made...