State v. Penman
| Decision Date | 25 June 1998 |
| Docket Number | No. 960639-CA,960639-CA |
| Citation | 964 P.2d 1157 |
| Parties | 346 Utah Adv. Rep. 11 STATE of Utah, Plaintiff and Appellee, v. Roger Eugene PENMAN, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Reed L. Martineau, Korey D. Rasmussen, Snow, Christensen & Martineau, Salt Lake City, for Defendant and Appellant.
Jan Graham, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Criminal Appeals Div., Salt Lake City, for Plaintiff and Appellee.
Before WILKINS, JACKSON and ORME, JJ.
Roger Eugene Penman appeals the denial of his motion to withdraw his no-contest plea to one count of manslaughter, a second degree felony in violation of Utah Code Ann. § 76-5-205 (1995), 1 and his guilty plea to robbery, a second degree felony in violation of Utah Code Ann. § 76-6-301 (1978). 2 We affirm, concluding that the requirements of Rule 11(e) of the Utah Rules of Criminal Procedure were satisfied and, therefore, that the trial court properly denied Penman's motion to withdraw his pleas. We further conclude that the record before us is inadequate to determine whether Penman received ineffective assistance of counsel; that two of three pieces of allegedly exculpatory evidence are not properly before us and that the third, a ballistics report, was not improperly withheld; and that Penman waived his rights under the Interstate Agreement on Detainers (IAD), as codified in Utah Code Ann. § 77-29-5 (1995), when he voluntarily and unconditionally entered his pleas.
On October 31, 1987, or the early morning hours of the following day, Spencer Nielsen was killed in his Midvale home by a blast from a twenty-gauge shotgun, and oriental artifacts were taken from his home. Several weeks later, a high speed chase occurred between the towns of Rawlins and Green River, Wyoming, ending in the apprehension of appellant Penman and Monte "Bo" Johnston. A third person, Wendell Devon Baer, eluded the police and was later apprehended in Craig, Colorado, but he made bail and has not been seen since. The Wyoming authorities recovered artifacts from the vehicle that were identical to those taken from Nielsen's home. The authorities also recovered twenty-gauge shotgun shells from the vehicle and Penman's pockets.
After his Wyoming arrest, Penman was transferred to Nevada to face probation-violation charges. Meanwhile, in exchange for immunity, Johnston provided Salt Lake County authorities with information on two homicides--one of which was the Nielsen homicide. Johnston informed the authorities that he, Penman, Baer, and Rick Lewis went to the Nielsen residence where they stole oriental artifacts. Johnston also stated that before leaving, he and Penman reentered the home, where Penman shot Nielsen with the twenty-gauge shotgun.
Salt Lake County authorities filed theft, burglary, robbery, and second-degree murder charges against Penman, Baer, and Lewis. While incarcerated in Nevada, Penman filed for a 180-day disposition of detainers under the IAD and was returned to Utah on April 4, 1988. Penman subsequently waived his rights under the IAD. Lewis was later arrested and agreed to cooperate with Salt Lake County authorities in exchange for reduced charges. His account substantially supported Johnston's, except regarding who actually pulled the trigger.
Shortly before Penman's preliminary hearing, Johnston, who was then on probation in Wyoming, fled and remains at large. Lewis therefore became the State's key witness. On October 28, 1988, following a preliminary hearing at which Lewis testified, Penman entered a no-contest plea to manslaughter and a guilty plea to robbery. Penman received a lengthy prison sentence, which he continues to serve.
In June 1990, Penman filed a pro se Motion for Appointment of Counsel, Motion to Withdraw Pleas, and a Motion in Forma Pauperis. Penman's Motion for Appointment of Counsel was granted on July 9, 1990. After several delays in getting counsel appointed, in March 1992 Penman's newly appointed attorney filed a memorandum supporting Penman's motion to withdraw his pleas, arguing that the trial court failed to comply with Rule 11 of the Utah Rules of Criminal Procedure in accepting Penman's guilty and no-contest pleas. Specifically, Penman argued that the plea colloquy and affidavits were inadequate and that he did not enter the pleas voluntarily. Penman contended that he entered the pleas based upon the belief that both Johnston and Lewis would be testifying against him. He also asserted that Lewis gave perjured testimony at the preliminary hearing. Penman's motion to withdraw his pleas was denied on August 14, 1992. His attorney withdrew during the ensuing thirty-day appeal period without first filing a notice of appeal.
Penman's next move was to file a pro se Petition for Writ of Habeas Corpus on April 29, 1994. In his petition, Penman made a number of arguments, including those raised in his motion to withdraw his pleas, but also alleged ineffective assistance of counsel, violation of the IAD, and prosecutorial misconduct. On June 15, 1995, the trial court granted summary judgment to the State, concluding that the claims Penman raised in his petition were procedurally barred due to his failure to directly appeal the denial of his motion to withdraw his pleas, that his pleas were knowing and voluntary, and that he was not prejudiced by his counsel's withdrawal during the thirty-day appeal period following the denial of his motion to withdraw pleas. Penman appealed to this court, and in an unpublished memorandum decision, 3 we reversed and remanded the case to the trial court for reentry of the order denying Penman's motion to withdraw his pleas, thereby enabling him to pursue belatedly the first appeal as of right which he had been theretofore denied. The trial court reentered the order "tunc pro nunc" 4 on August 27, 1996. Penman now appeals from that order. 5
Penman raises several arguments in this appeal. First, he argues that the trial court failed to comply with Rule 11 of the Utah Rules of Criminal Procedure in taking his guilty and no-contest pleas, and, therefore, good cause exists for the withdrawal of his pleas. Second, Penman contends that he was denied effective assistance of counsel in entering his guilty and no-contest pleas. Third, Penman claims that he would not have entered his pleas had he known of certain exculpatory and impeachment evidence which he obtained in 1994. Fourth, Penman argues that the State of Utah lost jurisdiction over him because his waiver of rights under the IAD was not made knowingly, intelligently, and voluntarily.
Penman first contends that he did not understand the nature and elements of manslaughter and robbery when he entered his pleas and that the plea affidavits and colloquy fail to demonstrate Rule 11 compliance. He therefore argues that the trial court erred in denying his motion to withdraw his pleas.
"A plea of guilty or no contest may be withdrawn only upon good cause shown and with leave of the court." Utah Code Ann. § 77-13-6(2)(a) (1995). "We review a trial court's denial of a motion to withdraw a guilty plea under an abuse-of-discretion standard." State v. Blair, 868 P.2d 802, 805 (Utah 1993). Consequently, "[t]he trial court's findings of fact made in conjunction with its decision will not be set aside unless they are clearly erroneous." Id.
The version of Rule 11 in effect when Penman entered his plea provided, in pertinent part, that
[t]he court ... shall not accept ... a [guilty or no contest] plea until the court has made the findings:
...
(2) That the plea is voluntarily made;
(3) That the defendant knows he has rights against compulsory self-incrimination, to a jury trial and to confront and cross-examine in open court the witnesses against him, and that by entering the plea he waives all of those rights;
(4) That the defendant understands the nature and elements of the offense to which he is entering the plea; 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....
Utah R.Crim. P. 11(e)(2)-(4) (1988). 6 The trial judge bears the burden of establishing, on the record, strict compliance with Rule 11(e). See State v. Abeyta, 852 P.2d 993, 995 (Utah 1993) (per curiam); State v. Gibbons, 740 P.2d 1309, 1313 (Utah 1987). However, "strict compliance can be accomplished by multiple means so long as no requirement of the rule is omitted and so long as the record reflects that the requirement has been fulfilled." State v. Maguire, 830 P.2d 216, 218 (Utah 1991).
We conclude that the trial court complied with Rule 11(e) and therefore did not abuse its discretion in denying Penman's motion to withdraw his pleas.
[The] record may reflect [Rule 11 compliance] by multiple means, e.g., transcript of the oral colloquy between the court and defendant, contents of a written affidavit that the record reflects was read, understood, and acknowledged by defendant and the court, contents of other documents such as the information, presentence reports, exhibits, etc., similarly incorporated into the record, and so on.
Id. In open court and in accordance with Rule 11(e)'s requirements, Penman executed two affidavits, one for each charge, wherein he stated that his pleas were voluntarily made, that he knew he had rights against compulsory self-incrimination and to a jury trial, that he understood the prosecutor must prove every element of the charged crimes beyond a reasonable doubt if Penman proceeded to trial, and that his pleas waived the constitutional rights discussed in the affidavits.
With regard to the elements of the crimes, the affidavits stated that Penman had received a copy of the information, which set forth the robbery charge and further recited that Penman was charged with "criminal homicide, murder in the second degree, [for] intentionally or...
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