State v. Ruiz

• Decision Date: 21 November 2013
• Docket Number: No. 20071003–CA.,20071003–CA.
• Citation: 316 P.3d 984,748 Utah Adv. Rep. 33
• Parties: STATE of Utah, Plaintiff and Appellee, v. Wolfgango RUIZ, Defendant and Appellant.
• Court: Utah Court of Appeals

316 P.3d 984

748 Utah Adv. Rep. 33

STATE of Utah, Plaintiff and Appellee,

v.Wolfgango RUIZ, Defendant and Appellant.

No. 20071003–CA.

Court of Appeals of Utah.

Nov. 21, 2013.

Hakeem Ishola and Aaron Tarin, Attorneys for Appellant.

John E. Swallow and Laura B. Dupaix, Attorneys for Appellee.

Judge GREGORY K. ORME authored this Opinion, in which Judges JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN concurred.

ORME, Judge:

¶ 1 Defendant Wolfgango Ruiz appeals the district court's denial, on reconsideration, of his motion to withdraw his guilty plea to a charge of attempted sexual abuse of a child, a third degree felony. SeeUtah Code Ann. § 76–5–401 (LexisNexis 2012).¹ We affirm.

BACKGROUND ²

¶ 2 In 2006, Defendant was charged with sexual abuse of a child, a second degree felony. Defendant retained counsel and then pled guilty to a reduced count of attempted sexual abuse of a child, a third degree felony. State v. Ruiz, 2009 UT App 121, ¶ 2, 210 P.3d 955,rev'd,2012 UT 29, 282 P.3d 998. “The written plea agreement executed by [Defendant] indicated that he knew the potential sentence was a term of zero to five years in prison.” Id.

¶ 3 Two months after pleading guilty, Defendant retained new counsel. Id. ¶ 3. “His new attorney filed a motion to withdraw [Defendant's] guilty plea, alleging that former counsel's ineffectiveness rendered the plea involuntary.” Id. Defendant alleged “that his former counsel misled him into believing that the original second degree felony he was facing required a minimum mandatory sentence of five years,” id., while the actual sentence was an indeterminate sentence of one to fifteen years, seeUtah Code Ann. § 76–3–203(2) (LexisNexis 2012), and that he entered a guilty plea to the third degree felony only because his then-counsel told him he might thereby avoid jail time, Ruiz, 2009 UT App 121, ¶ 3, 210 P.3d 955. Defendant, a Venezuelan native in this country illegally, also “alleged that his former counsel dissuaded him from seeking the advice of an immigration attorney before he pled guilty,” telling him the plea would not lead to his deportation. Id.

¶ 4 Judge Fuchs, the district court judge originally assigned to this case, “ruled that [Defendant's] former counsel misadvised him of the immigration consequences of his guilty plea and that this was a legitimate basis for withdrawing” the plea. Id. ¶ 4. At the hearing on the motion, the State asked for additional time to present testimony from Defendant's former counsel, but the request was denied. See id.

¶ 5 “The State filed a motion to reconsider in which it claimed that the prosecutor had spoken to [Defendant's] former counsel, who denied misrepresenting the immigration consequences of the guilty plea.” Id. ¶ 5. “Defendant opposed the motion, arguing that the State had been given several opportunities to present evidence to counter Defendant's affidavit but failed to do so.” Id. ¶ 6. Judge Fuchs “set a hearing on the motion to reconsider but retired before the hearing was held.” Id. “Judge Skanchy was then assigned to the case.” Id.

¶ 6 Over Defendant's objection, Judge Skanchy heard Defendant's former counsel's testimony. Id. ¶ 7. Former counsel testified that he and Defendant discussed the immigration consequences of the plea numerous times, that they discussed “immigration from day one,” and that he consistently told Defendant that “he would almost certainly be deported” if he pled guilty. Id. ¶ 8. Former counsel also testified that he discussed the ramifications of sentencing with Defendant, “telling him that if he were convicted of a third degree felony that he's looking at zero to five” and that if convicted of a second degree felony at trial, he would “normally certainly do at least five years in prison.” Based on this testimony, Judge Skanchy concluded that former counsel had rebutted “the self-serving allegations set forth in [Defendant's] affidavit.” Judge Skanchy “granted the motion to reconsider, rescinded Judge Fuchs's order granting the motion to withdraw the guilty plea, and denied [Defendant's] motion to withdraw his guilty plea.” Id.

¶ 7 In denying Defendant's motion to withdraw his guilty plea, Judge Skanchy concluded that Defendant's former counsel “did inform him about sentencing possibilities, including incarceration and deportation,” “did not affirmatively misrepresent immigration or incarceration consequences,” “gave [some] erroneous information to [Defendant,] but ... it did not [rise] to the level of ineffective assistance of counsel,” and did not “exaggerate the benefit of [the] proposed plea disposition.” Judge Skanchy finally noted that Defendant's plea was thus “knowing and voluntary and that ‘good cause’ does not exist for a withdrawal of that plea.” Defendant was then sentenced to a prison term of up to five years, which was suspended in favor of 365 days in jail and thirty-six months probation. He timely appealed Judge Skanchy's ruling. See id. ¶ 9.

¶ 8 In the first round of this appeal, Defendant argued that the “law of the case” doctrine prohibited Judge Skanchy from reconsidering Judge Fuchs's ruling that the State could not present the first attorney's testimony to rebut Defendant's affidavit. Id. See generally IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶¶ 26–27, 196 P.3d 588 (explaining that “under the law of the case doctrine, a decision made on an issue during one stage of a case is binding in successive stages of the same litigation”) (citation and internal quotation marks omitted). In rejecting this argument, we explained that the law of the case “doctrine [does] not preventa different judge from revisiting an interim order issued in a case by a prior judge because ... the two judges, while different persons, constitute a single judicial office for law of the case purposes.” Ruiz, 2009 UT App 121, ¶ 10, 210 P.3d 955 (citations and internal quotation marks omitted).

¶ 9 After concluding that Judge Skanchy had authority to revisit Judge Fuchs's ruling, we noted that Judge Skanchy had not articulated the basis for his decision to allow the State to present the first attorney's testimony, contrary to Judge Fuchs's ruling. Id. ¶ 14. Then, after citing opinions from the Utah Supreme Court stating that presentence motions to withdraw guilty pleas should, in general, be liberally granted, we explained that “[a]bsent such explanation on the record, we [had] no assurance that the change was not merely a function of personal preference on Judge Skanchy's part.” Id. ¶¶ 11, 14. Based on this concern, we vacated the ruling and reinstated the prior order permitting Defendant to withdraw his plea. Id. ¶ 15.

¶ 10 After we issued an amended opinion further explaining the continued vitality, as we saw it, of the “liberally granted” standard, the State filed a petition for certiorari that the Utah Supreme Court granted so that it could determine “(1) whether the ... decision to vacate Judge Skanchy's ruling was erroneous and (2) whether the principle that presentence motions to withdraw guilty pleas should be liberally granted remains good law after recent changes to the Plea Withdrawal Statute.” State v. Ruiz, 2012 UT 29, ¶ 21, 282 P.3d 998. The Utah Supreme Court rejected our analysis on both counts.

¶ 11 The Court concluded that the basis for Judge Skanchy's decision to reconsider was apparent from the record and that this court erred by vacating Judge Skanchy's grant of the State's motion to reconsider. Id. ¶ 22. The Court then concluded that because of recent statutory changes, judges are no longer obliged to “liberally grant” motions to withdraw guilty pleas. Id. ¶¶ 37–38. Rather, the Utah Code “now requires a finding that the defendant's plea was not knowingly and voluntarily entered before a motion to withdraw can be granted.” Id. ¶ 30.See alsoUtah Code Ann. § 77–13–6(2)(a) (LexisNexis 2012). The Court then sent the case back to us “to consider any other issues [Defendant] has properly raised.” Ruiz, 2012 UT 29, ¶ 38, 282 P.3d 998. We now turn to that task.

ISSUE AND STANDARD OF REVIEW

¶ 12 Defendant argues that Judge Skanchy erred when he denied, on reconsideration, Defendant's motion to withdraw his guilty plea. We review the denial of a motion to withdraw a guilty plea under an abuse of discretion standard, disturbing the findings of fact made in conjunction with that decision only if they are clearly erroneous. State v. Beckstead, 2006 UT 42, ¶ 7, 140 P.3d 1288;State v. Benvenuto, 1999 UT 60, ¶ 10, 983 P.2d 556.

ANALYSIS

¶ 13 As the Utah Supreme Court instructed in its opinion, the current plea withdrawal statute requires that before his motion to withdraw a guilty plea can be granted, Defendant must show that his plea was “not knowingly and voluntarily entered.” State v. Ruiz, 2012 UT 29, ¶ 30, 282 P.3d 998.SeeUtah Code Ann. § 77–13–6(2)(a) (LexisNexis 2012). Defendant challenges his plea as unknowing and involuntary based on two ineffective assistance of counsel claims.

¶ 14 To review Defendant's claims of ineffective assistance of counsel, we use the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding that the Strickland test “applies to challenges to guilty pleas based on ineffective assistance of counsel”). First, Defendant bears the burden of showing that his prior counsel's performance “fell below an objective standard of reasonableness,” i.e., that it fell below a standard of “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. In evaluating counsel's performance, we “indulge a strong presumption that counsel's conduct falls within the wide range of reasonableprofessional assistance.” Id. at 689, 104 S.Ct. 2052. Second, Defendant must show that he was prejudiced by the deficient performance. See id. at 687, 104 S.Ct. 2052.

¶ 15 Defendant asserts that his plea was unknowing and...