State v. Ostler

• Citation: 2000 Utah Ct. App. 028,996 P.2d 1065
• Decision Date: 10 February 2000
• Docket Number: No. 981308-CA.,981308-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Christopher Blain OSTLER, Defendant and Appellant.
• Court: Court of Appeals of Utah

996 P.2d 1065

2000 Utah Ct. App. 028

STATE of Utah, Plaintiff and Appellee, v. Christopher Blain OSTLER, Defendant and Appellant.

No. 981308-CA.

Court of Appeals of Utah.

February 10, 2000.

Joan C. Watt, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.

David E. Yocom and J. Kevin Murphy, Salt Lake County Attorney's Office, Salt Lake City, for Appellee.

Before GREENWOOD, P.J., DAVIS, and ORME, JJ.

OPINION

DAVIS, Judge:

¶ 1 Defendant appeals his conviction for unlawful control over a motor vehicle (joyriding), a class A misdemeanor, in violation of Utah Code Ann. § 41-1a-1314(1) (1998), and assault, a class B misdemeanor, in violation of Utah Code Ann. § 76-5-102 (1999). Defendant argues that the trial court erred by accepting his guilty pleas without first advising him of his right to counsel and then securing a knowing and voluntary waiver, and by failing to conduct a Rule 11 plea colloquy on the record. We agree. Accordingly, we vacate defendant's convictions and remand for further proceedings.

BACKGROUND

¶ 2 An Information was filed charging defendant with joyriding and assault. On February 19, 1998, defendant was arraigned without counsel. At the arraignment, the trial judge asked defendant to enter a plea on both charges. When asked, "How do you plead to [joyriding]?," defendant replied, "Guilty." When asked by the trial court, "How do you plead to [assault]?," defendant replied, "Guilty I guess." A colloquy then ensued between the trial judge and defendant on the joyriding charge. Defendant explained that he was not sure he was guilty of joyriding because he had always used his girlfriend's car, but that this time they had argued, which prompted her to call the police and report her car as stolen, even though she knew defendant had the car. Defendant told the judge that the reason he was pleading guilty was so he could "get it over with" and "get on with [his] life." The trial judge and defendant did not discuss the assault charge.

¶ 3 Although after his guilty plea defendant maintained his innocence on the joyriding charge, the judge stated, "I'm going to go ahead and accept your guilty pleas on the case." The trial judge then asked defendant, "Did you see the tape downstairs?," to which defendant responded in the affirmative.¹ The judge told defendant, "You only have 30 days to make a motion to withdraw your pleas. After that, it's too late. Do you understand that?" Defendant replied, "Yes." Defendant was then released to pretrial services and a sentencing date was set for forty-five days later.

¶ 4 Defendant failed to appear at his presentence interview with Adult Probation and Parole and for sentencing. A bench warrant was issued, defendant was subsequently arrested, and the sentencing hearing was held on May 20, 1998. During this hearing, defendant again tried to explain that he was not guilty of joyriding. Unresponsive to defendant's explanation, the judge sentenced defendant to concurrent sentences of twelve months in jail for the joyriding conviction, and six months for the assault conviction.

¶ 5 On June 8, 1998, defendant filed a motion to withdraw his guilty pleas, arguing in part that his constitutional right to counsel was violated at the arraignment. Defendant maintained that he "unk[n]owingly plead[ed] guilty to erroneous charges and additional charges that were in error." The trial court denied defendant's motion as untimely. Defendant filed a timely Notice of Appeal, and was appointed counsel to assist him with his appeal.

ISSUES AND STANDARD OF REVIEW

¶ 6 Defendant argues that his guilty pleas must be set aside because they were accepted by the trial court in violation of his Sixth Amendment right to counsel, his due process rights under Article I, Section 7 of the Utah Constitution, and Rule 11 of the Utah Rules of Criminal Procedure. "`[T]he 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. Benvenuto, 983 P.2d 556, 558 (Utah 1999) (quoting State v. Holland, 921 P.2d 430, 433 (Utah 1996)).

¶ 7 Defendant also argues that this court should overrule that portion of State v. Price, 837 P.2d 578 (Utah Ct.App.1992), holding that, when a defendant was so advised, the thirty-day rule set out in Utah Code Ann. § 77-13-6(2)(b) (1999) is jurisdictional and runs from the date of the plea hearing, not from the date of sentencing. See Price, 837 P.2d at 583

. The Utah Supreme Court's holding in State v. Thurman, 846 P.2d 1256 (Utah 1993), is dispositive of this contention. Under Thurman, this court is bound by the doctrine of stare decisis and cannot overrule another panel's ruling. See id. at 1269. Accordingly, because "[w]e are not at liberty to overrule our prior holding," Kunz & Co. v. State Dep't of Transp., 949 P.2d 763, 767 (Utah Ct.App.1997), we do not address this issue further.

ANALYSIS

¶ 8 The trial court properly warned defendant that if he wanted to withdraw his guilty pleas, he must file a motion to do so within thirty days of the plea proceedings. See Utah Code Ann. § 77-13-6(2)(b) (1999); see also Utah R.Crim. P. 11(e)(7) (providing trial court "may not accept [a guilty] plea until the court has found ... the defendant has been advised of the time limits for filing any motion to withdraw the plea"). Notwithstanding the trial court's clear instructions, defendant failed to file his motion until well after the time limit had expired. Because defendant's motion was untimely, the trial court was without jurisdiction to reach the merits. See Price, 837 P.2d at 583

. In accordance with State v. Marvin, 964 P.2d 313, 318 (Utah 1998), however, this court can review defendant's guilty pleas for plain error or exceptional circumstances.²

See also Price, 837 P.2d at 580. To succeed on a claim of plain error, a defendant has the burden of showing "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993); accord Marvin, 964 P.2d at 318.

¶ 9 Defendant argues that the trial court committed plain error by failing to protect both his constitutional and procedural rights under Rule 11 of the Utah Rules of Criminal Procedure. Rule 11(e) mandates, in pertinent part:

The court may refuse to accept a plea of guilty, no contest or guilty and mentally ill, and may not accept the plea until the court has found:

(1) if the defendant is not represented by counsel, he or she has knowingly waived the right to counsel and does not desire counsel;

(2) the plea is voluntarily made;

(3) the defendant knows of the right to the presumption of innocence, the right against compulsory self-incrimination, the right to a speedy public trial before an impartial jury, the right to confront and cross-examine in open court the prosecution witnesses, the right to compel the attendance of defense witnesses, and that by entering the plea, these rights are waived;

(4) (A) the defendant understands the nature and elements of the offense to which the plea is entered, that upon trial the prosecution would have the burden of proving each of those elements beyond a reasonable doubt, and that the plea is an admission of all those elements;

(B) there is a factual basis for the plea. A factual basis is sufficient if it establishes that the charged crime was actually committed by the defendant or, if the defendant refuses or is otherwise unable to admit culpability, that the prosecution has sufficient evidence to establish a substantial risk of conviction;

(5) the defendant knows the minimum and maximum sentence, and if applicable, the minimum mandatory nature of the minimum sentence, that may be imposed for each offense to which a plea is entered, including the possibility of the imposition of consecutive sentences;

(6) if the tendered plea is a result of a prior plea discussion and plea agreement, and if so, what agreement has been reached;

(7) the defendant has been advised of the time limits for filing any motion to withdraw the plea; and

(8) the defendant has been advised that the right of appeal is limited.

Utah R.Crim. P. 11(e) (emphasis added).

¶ 10 "`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.'" Benvenuto, 983 P.2d at 558 (quoting State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987)). The trial court must strictly adhere to Rule 11(e). See State v. Thurman, 911 P.2d 371, 372 (Utah 1996)

.

Under the ... strict compliance test, before accepting the guilty plea, the trial court must review on the record with the defendant at the time the plea is taken the nature and elements of the offense, the constitutional rights articulated in Rule 11 which he waives by pleading guilty, and the allowable penalties.

State v. Pharris, 798 P.2d 772, 778 (Utah Ct.App.1990); see also State v. Penman, 964 P.2d 1157, 1160 (Utah Ct.App.1998)

("The trial judge bears the burden of establishing, on the record, strict compliance with Rule 11(e).").

¶ 11 After reviewing the record, we find that the trial court discussed only one of the seven applicable Rule 11(e) requirements in court and on the record with defendant. First, the trial court failed to determine whether defendant was represented by counsel, or whether he voluntarily waived his right to counsel. See Utah R.Crim. P. 11(e)(1). Rule 11 embodies the Sixth Amendment³ right to counsel and requires the trial court to establish that a defendant has knowingly waived his or her right to counsel "in open court." Utah R.Crim. P. 11(a). Hence, "[t]he court ... may not accept the [guilty] plea until the court has found[,] ... if the defendant is not represented by counsel, he or she has knowingly waived the right to counsel and does not desire counsel." Utah R.Crim. P. 11(e) (emphasis added). He...