State v. Person
| Decision Date | 07 July 2006 |
| Docket Number | No. 20050323-CA.,20050323-CA. |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Bryan Allen PERSON, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Dee W. Smith, Richards Caine & Allen, Ogden, for Appellant.
Mark L. Shurtleff, Attorney General, and Karen A. Klucznik, Assistant Attorney General, Salt Lake City, for Appellee.
Before Judges BENCH, BILLINGS, and ORME.
¶ 1 Defendant Bryan Allen Person appeals the trial court's denial of his motion to withdraw his guilty plea. Defendant maintains that the trial court improperly denied his motion to withdraw because, prior to ruling on the motion, the trial court did not afford Defendant an evidentiary hearing and neglected to appoint new counsel. Defendant also claims he received ineffective assistance of counsel because his trial attorney did not ask the trial court to appoint conflict-free counsel and failed to present any evidence or argument on Defendant's behalf. We affirm.
¶ 2 On October 13, 2004, Defendant asked Travis Mendoza (Mendoza) for a ride to the mouth of Ogden Canyon to look for a lost ring. Upon arriving at the canyon, the two men began searching for the ring. After they had wandered some distance from the road, Defendant pulled out a gun and demanded that Mendoza relinquish his valuables. In response, Mendoza gave Defendant his car keys, wallet, and other miscellaneous property. Mendoza then attempted to reach for Defendant's gun. A struggle ensued between the two men that ended when the gun discharged and shot Mendoza in the arm. Defendant fled the scene of the crime in Mendoza's vehicle. A short time later, Defendant led police on a brief car chase that concluded when Defendant crashed Mendoza's car. Police apprehended Defendant as he tried to flee on foot and found Mendoza's wallet in Defendant's possession and Defendant's gun in the trash can of a nearby residence.
¶ 3 The State charged Defendant with aggravated robbery, a first degree felony, see Utah Code Ann. § 76-6-302 (2003), and possession of a firearm by a restricted person, a second degree felony, see Utah Code Ann. § 76-10-503(2)(a) (2003).
¶ 4 More than three months later, Defendant pleaded guilty to the aggravated robbery charge, and the State agreed to dismiss the firearm charge and to not refer the charge to federal prosecutors. Prior to accepting Defendant's guilty plea, the trial court engaged in a rule 11 plea colloquy, see Utah R.Crim. P. 11(e), discussing with Defendant the consequences of entering a guilty plea.1 During this discussion, Defendant affirmatively acknowledged his understanding of such consequences. Defendant also expressly indicated to the trial court that he was satisfied with the legal representation he received from the public defender, and that he was entering his plea "at [his] own free will and choice." The trial court "accept[ed Defendant's] plea of guilty, find[ing] that [Defendant] made it knowingly and voluntarily." Defendant subsequently signed and entered a Statement of Defendant in Support of Guilty Plea and Certificate of Counsel.
¶ 5 Prior to his sentencing hearing, Defendant sent a letter to the trial court, stating:
I know I said I understood everything that was going on, but since court I've been talking to people around me including the contract lawyer here in Draper prison and [I] have come to re[a]lize that I should not have taken the five to life. The only reason I did is because my lawyer said if I was found guilty on both charges by a jury I would have to do the five to life first then the one to fifteen. I don't feel that my lawyer p[er]formed to the best of his ability[ ] for me. I believe strongly that I was rushed through this whole matter and would like to withdraw my plea.
¶ 6 Defense counsel subsequently filed a formal motion to withdraw Defendant's guilty plea, explaining that "[D]efendant fe[lt] that his attorney did not perform to the best of his abilities and that ... [D]efendant fe[lt] he was rushed through the whole matter." The attorney who filed Defendant's motion was the same attorney Defendant complained of therein. The motion to withdraw omitted Defendant's claim as to his attorney's advice regarding the consecutive sentences, and the motion stated that it was "based upon Defendant's [m]emorandum to be submitted." Defense counsel never filed a memorandum in support of the motion. The State did, however, submit a response to Defendant's motion.
¶ 7 At Defendant's sentencing hearing, the trial court acknowledged Defendant's motion to withdraw his guilty plea and asked if Defendant still wished to withdraw his plea. Defendant, by and through counsel, indicated that he did. When asked, however, if Defendant wished to make any further argument than what he had already submitted, defense counsel said no. Consequently, the trial court, based on the submissions it had before it—Defendant's motion to withdraw his guilty plea and the State's response to that motion—instructed Defendant:
It [wa]s not sufficient to claim that your attorney did not perform to the best of his abilities and you felt rushed. You and [the court] had a discussion about this case, [the trial court] went through what your rights were in great detail and we talked about that over and over.... And in addition ..., there were things placed in writing and [the court] find[s] that there are no grounds sufficient for [it] to grant the motion, and therefore, [it] den[ies] the motion to set aside your plea.
Defendant appeals.
¶ 8 Defendant claims that the trial court improperly denied his motion to withdraw his guilty plea because the court ruled on the motion without holding an evidentiary hearing and without appointing Defendant new counsel. Typically, we review "[t]he denial of a motion to withdraw a guilty plea . . . under an abuse of discretion standard, incorporating a clearly erroneous standard for findings of fact" and reviewing questions of law for correctness. State v. Martinez, 2001 UT 12, ¶ 14, 26 P.3d 203.
¶ 9 Defendant also maintains that he received ineffective assistance of counsel when his trial attorney failed to ask the trial court to appoint conflict-free counsel and when the attorney did not present any evidence or argument on Defendant's behalf. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law," State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162, which we review for correctness, see State v. Diaz, 2002 UT App 288, ¶ 13, 55 P.3d 1131.
¶ 10 Defendant first argues that the trial court abused its discretion in denying his motion to withdraw his guilty plea because, prior to ruling on the motion, the court did not hold an evidentiary hearing and did not appoint new counsel. Defendant, however, raises this issue for the first time on appeal. We are therefore precluded from reviewing it without a demonstration by Defendant of plain error or exceptional circumstances. See State v. Winfield, 2006 UT 4, ¶ 23, 128 P.3d 1171 . "Because [Defendant] does not argue that `exceptional circumstances' or `plain error' justif[y our] review of the issue, we decline to consider it on appeal." State v. Pledger, 896 P.2d 1226, 1229 n. 5 (Utah 1995); see also Winfield, 2006 UT 4 at ¶ 23, 128 P.3d 1171 ().
¶ 11 Further, "under the doctrine of invited error, we have declined to engage in even plain error review when `counsel, either by statement or act, affirmatively represented to the [trial] court that he or she had no objection to the [proceedings].'" Winfield, 2006 UT 4 at ¶ 14, 128 P.3d 1171 (alterations in original) (quoting State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111). Here, defense counsel affirmatively indicated to the trial court that he had no objection to the trial court proceeding without holding a hearing or appointing new counsel. In Defendant's motion to withdraw his guilty plea, defense counsel did not request an evidentiary hearing or an appointment of new counsel. Moreover, when asked at Defendant's sentencing hearing if Defendant wished to submit any further arguments regarding his motion to withdraw, defense counsel said no. Thus, we decline to consider Defendant's challenge to the trial court's denial of his motion to withdraw his guilty plea.
¶ 12 Defendant also argues that he received ineffective assistance of counsel because his trial attorney (1) did not submit a memorandum in support of Defendant's motion to withdraw his guilty plea and (2) did not ask the trial court to appoint conflict-free counsel when Defendant stated that his desire to withdraw his plea stemmed from his dissatisfaction with trial counsel's performance. In raising an ineffective assistance of counsel claim for the first time on appeal, Defendant "bear[s] the burden of proof with respect to [his] appeal[ ], including the burdens attending the preservation and presentation of the record." State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92.2 Accordingly, "[this] court will presume that any argument of ineffectiveness presented to it is supported by all the relevant evidence of which [D]efendant is aware." Id. Thus, "[w]here the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom ... will be construed in favor of a finding that counsel performed effectively." Id. ¶ 13 For Defendant to demonstrate that trial counsel's...
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