State v. Price

• Decision Date: 23 July 1992
• Docket Number: No. 910111-CA,910111-CA
• Citation: 837 P.2d 578
• Parties: STATE of Utah, Plaintiff and Appellee, v. Micheal D. PRICE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 578

837 P.2d 578

STATE of Utah, Plaintiff and Appellee, v. Micheal D. PRICE, Defendant and Appellant.

No. 910111-CA.

Court of Appeals of Utah.

July 23, 1992.

Ronald S. Fujino, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and Marian Decker, Salt Lake City, for plaintiff and appellee.

Before BENCH, BILLINGS and GREENWOOD, JJ.

BILLINGS, Associate Presiding Judge:

Defendant Micheal Dean Price appeals the trial court's denial of his pro se motion to withdraw his guilty plea to a charge of attempted aggravated assault, a class A misdemeanor, in violation of Utah Code Ann. §§ 76-4-101 and -102(4) (1990). We affirm.

FACTS

Defendant was arrested and charged with aggravated assault, a third-degree felony, in violation of Utah Code Ann. § 76-5-103 (1990), resulting from a domestic dispute. On December 18, 1990, pursuant to a plea agreement, defendant pleaded guilty to the reduced charge of attempted aggravated assault, a class A misdemeanor, in violation of Utah Code Ann. §§ 76-4-101 and -102(4) (1990).

During the plea proceeding, defendant's counsel informed the court he had discussed the entry of a guilty plea with defendant "on numerous occasions" and was persuaded that defendant comprehended "the effect and meaning" of such a plea. Defendant also stated he had consulted with his counsel and understood the guilty plea.

In connection with his guilty plea, defendant executed a "Statement of Defendant." This affidavit indicated that defendant's plea was made "voluntarily," defendant understood the "nature and elements" of attempted aggravated assault, and defendant waived certain enumerated "statutory and constitutional rights." The affidavit also described the elements of attempted aggravated assault. Defendant informed the court he had read the affidavit, discussed it with his counsel and understood it.

The court reviewed the affidavit on the record with defendant during the plea proceeding. Specifically, the court questioned defendant about the voluntary nature of his guilty plea, the constitutional rights defendant was waiving, and defendant's understanding of the elements of attempted aggravated assault. Defendant expressed concern only about his potential sentence. In response, the court explained that, while probation was not "guaranteed," he would give "serious consideration" to the recommendations of the prosecution and the Adult Probation and Parole office. Following the plea colloquy, the court accepted defendant's guilty plea as "freely, voluntarily and knowingly executed." The court then advised defendant he had the right to move to set aside his guilty plea within thirty days.

By handwritten letter dated January 18, 1991, thirty-one days after the plea proceeding, defendant notified the court that he wished to withdraw his guilty plea.

On January 29, 1991, immediately prior to sentencing defendant, the court heard defendant's pro se motion to withdraw his guilty plea. Although defendant was represented by counsel at this hearing, defendant argued his motion pro se because his counsel did not believe defendant had a valid reason for withdrawing his guilty plea. ¹ Defendant asserted he was not guilty of attempted aggravated assault, and that neighbors agreed with him. The State objected to defendant's motion but presented no argument in opposition, including no claim that defendant's motion was untimely. The court denied defendant's pro se motion because defendant "established no legal reason" for the court to set aside defendant's guilty plea.

On appeal, defendant claims the trial court erred by: (1) Accepting defendant's guilty plea without establishing that defendant understood the "nature and elements of the offense," thus failing to comply with Rule 11 of the Utah Rules of Criminal Procedure; and (2) denying defendant's pro se motion to withdraw his guilty plea in view of new evidence favorable to defendant and the fact that his initial plea was not voluntary. The State responds that we do not have jurisdiction of this appeal as defendant's motion to withdraw his guilty plea was untimely.

RULE 11 AND VOLUNTARY PLEA

Defendant first argues the trial court failed to comply with the requirements of Rule 11 of the Utah Rules of Criminal Procedure and the common law requirements of State v. Gibbons, 740 P.2d 1309 (Utah 1987), in accepting his guilty plea. Specifically, defendant alleges the trial court failed to adequately establish that he understood the nature and elements of the offense charged and, thus, that his plea was voluntary. The State correctly contends defendant raises these arguments for the first time on appeal.

As a general rule, "a defendant who fails to bring an issue before the trial court is barred from asserting it initially on appeal." State v. Archambeau, 820 P.2d 920, 922 (Utah App.1991); accord State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989). However, an appellate court may address an issue for the first time on appeal if: "(1) the trial court committed 'plain error,' or (2) there are 'exceptional circumstances.' " Archambeau, 820 P.2d at 922. We find neither.

In Gibbons, the Utah Supreme Court declared: "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." ² Id. at 1312. The Utah Supreme Court recently clarified the test for reviewing the validity of post-Gibbons guilty pleas in an advisory opinion, State v. Maguire, 830 P.2d 216 (Utah 1992). In Maguire, the supreme court stated:

We ... restate our holding that (1) strict compliance with the elements of rule 11 is required in the taking of guilty pleas and (2) said compliance may be demonstrated on appeal by reference to the record of the plea proceedings. When plea affidavits are properly incorporated in the record (as when the trial judge ascertains in the plea colloquy that the defendant has read, has understood, and acknowledges all the information contained therein), they may properly form a part of the basis for finding rule 11 compliance.

Id. at 217. The court explained the meaning of "the record of the plea proceedings" as follows:

The record before an appellate court must contain a basis for [Rule 11(5) ] findings, but that record may reflect such a basis 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. at 218. Therefore, "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." Id.

Defendant claims the trial court failed to adequately inform him of the elements of the offense charged. Specifically, defendant argues that, when he demonstrated confusion during the plea colloquy, the trial court rushed him into answering rather than clarifying his uncertainty, such that his plea was not voluntary. The record reveals that the trial court recited the facts and elements of the crime charged and asked defendant if they were correct. Initially, defendant responded affirmatively. However, when the trial court inquired again, defendant apparently hesitated. The trial court responded as follows:

Mr. Price, I'm not going to play games with you. If you want to go to trial, then we'll go to trial. I'm not going to spend the morning in here with you while you're pondering.

Now, have you made up your mind? Are you going to plead or are you not going to plead? We'll go to trial tomorrow morning with a jury if you want that.

Defendant subsequently replied again that he wished to plead guilty.

We do not find error in the trial court's acceptance of defendant's guilty plea, certainly not plain error. Our examination of both defendant's plea affidavit and the plea colloquy transcript, pursuant to Maguire, confirms that all of the elements of Rule 11(5) were reviewed with defendant, including his understanding of the elements of the offense. Furthermore, the trial court established that defendant had discussed the affidavit with counsel and understood it. The trial court, therefore, met its burden of ensuring that constitutional and Rule 11 requirements were satisfied. We are persuaded that defendant understood the elements of the offense with which he was charged and, thus, that his plea was voluntary.

TIMELINESS OF MOTION TO WITHDRAW GUILTY PLEA

The State argues the trial court lacked jurisdiction to consider defendant's pro se motion to withdraw his guilty plea because defendant did not file his motion within thirty days of the plea proceeding, pursuant to Utah Code Ann. § 77-13-6(2)(b) (1990), even though he was informed of the thirty-day deadline in the plea affidavit he signed and by the judge during the plea colloquy. Defendant responds that the State may not raise this timeliness issue for the first time on appeal. The State concedes the timeliness issue was not raised below but claims this question of jurisdiction may be raised at any time.

Section 77-13-6(2)(b) provides: "A request to withdraw a plea of guilty or no contest is made by motion, and shall be made within 30 days after the entry of the plea." This time limit, however, must be construed in conjunction with Rule 11 of the Utah Rules of Criminal Procedure. Rule 11(5)(g) states: "The court may refuse to accept a plea of guilty or no contest, and may not accept the plea until the court has found ... the defendant has been advised of the time limits for filing any motion to withdraw a plea of guilty or no contest." Rule 11(6) provides: "Failure to advise the defendant of the time limits for filing any motion to withdraw a plea of guilty or no contest is not a ground for setting the plea...