State v. Sharp

• Decision Date: 19 August 2021
• Docket Number: No. 20190292-CA,20190292-CA
• Citation: 498 P.3d 9
• Parties: STATE of Utah, Appellee, v. Bobbie Joe SHARP Jr., Appellant.
• Court: Utah Court of Appeals

498 P.3d 9

STATE of Utah, Appellee,

v.Bobbie Joe SHARP Jr., Appellant.

No. 20190292-CA

Court of Appeals of Utah.

Filed August 19, 2021

Wendy Brown, Salt Lake City, and Sarah J. Carlquist, Attorneys for Appellant

Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

POHLMAN, Judge:

¶1 Bobbie Joe Sharp Jr. pleaded guilty to one count of aggravated sexual abuse of a child, a first degree felony. After entering his plea and before sentencing, the victim (Victim) purportedly wrote a letter in which she recanted her allegations of Sharp's abuse. Alleging the letter exonerated him, Sharp orally moved to withdraw his plea, but the district court denied the motion and proceeded to sentence Sharp. On appeal, Sharp contends that Victim's supposed recantation rendered his guilty plea unknowing and involuntary and thus justified withdrawal of his plea. Alternatively, Sharp contends that the court should have continued sentencing and that it violated his right to allocution. We reject Sharp's arguments and affirm.

BACKGROUND

¶2 In January 2018, the State charged Sharp with two counts of rape of a child, three counts of sodomy on a child, one count of aggravated sexual abuse of a child, and one count of enticing a minor. As declared in the State's probable cause statement, Victim's grandmother reported that Sharp had given Victim, an eleven-year-old girl, a cell phone around Thanksgiving 2017 and that Sharp had been sending Victim sexually explicit messages.¹ The messages contained suggestions that Sharp and Victim should shower together and engage in anal sex. Victim stated that Sharp, who was nearly sixty years old, "dated her" and also sexually abused her. For example, Victim explained how Sharp made her give him "blow jobs" and taught her how to do a "69." Victim said that Sharp told her that he could not wait until he could take her virginity and Sharp would say, "Let's fuck, baby." Victim also described that when Sharp was in the shower with her, he told her to bend over, and he tried to go "in" her and would not stop even after she told him to stop.

¶3 At the preliminary hearing, the State introduced the DVD of Victim's interview at the Children's Justice Center, evidence that Sharp lived in Victim's apartment complex, and evidence that Sharp met Victim when he gave ice pops to her and the other children in the complex. Victim's mother testified that in the autumn of 2017, Victim spent time daily in Sharp's apartment and Sharp would walk her home in the evening. The State also introduced evidence that Sharp sent messages to Victim about "butt things" and told Victim that he "would stretch her butt out." After the preliminary hearing, the district court bound Sharp over for trial.²

¶4 Sharp engaged in plea negotiations with the State. Ultimately, in November 2018, the State amended the information to a single count of aggravated sexual abuse of a child, and Sharp pleaded guilty to that charge.

¶5 In his statement in support of his guilty plea, Sharp acknowledged that he "underst[ood] that by pleading guilty [he would] be admitting that [he] committed the crime[ ]" of aggravated sexual abuse of a child. He also "stipulate[d] and agree[d]" to a factual description of his conduct for which he was criminally liable. Sharp's statement also showed that Sharp "agree[d] to be sentenced to a term of 15 year[s] to life in prison."

¶6 The district court held a change of plea hearing, during which Sharp's counsel reiterated the factual basis for the plea. Counsel also acknowledged that Victim was eleven years old at the time of the offense and that Sharp's position of special authority was "akin to a babysitter."

¶7 The court conducted the requisite plea colloquy with Sharp. Sharp confirmed to the court that what his attorney described did in fact happen and that he was pleading guilty because he was guilty. Sharp also stated, among other things, that he understood the rights that he was giving up by pleading guilty. The court accepted Sharp's guilty plea, finding that the plea was "knowing and voluntary," that Sharp had the "advantage of very good counsel," and that he was "competent to enter a plea" and "underst[ood] the rights [he was] giving up by doing so." The court told Sharp, "If you want to ask to withdraw this plea, you'll need to do so in writing to me sometime before your sentencing."

¶8 Even though he was represented by counsel, Sharp himself wrote to the judge weeks later, stating that he "would like to cancel [his] plea deal and go to trial." Shortly afterward, Sharp's counsel filed a written motion to withdraw Sharp's guilty plea and attached Sharp's "sua sponte" letter to the motion. Sharp's counsel did not provide a basis for the plea withdrawal but requested that the court set oral argument on the motion and postpone sentencing. The court agreed to hold a hearing.

¶9 At the hearing on the motion to withdraw the guilty plea, Sharp's counsel began by informing the court that a letter, written to Sharp, recently "was intercepted at the jail" and was "purportedly from the victim in this case." Counsel continued, "[I]t is an exculpatory letter basically, which I believe would, if it is verified as being from [Victim], would be another basis to withdraw [Sharp's] plea." Counsel explained that the State had the actual letter while she had an electronic copy. In response, the prosecutor stated, "We have asked Unified Police Department to investigate. We believe it's a forgery. ... And we don't have any word [from] them yet on the status of that investigation." The court thus decided to proceed with "handl[ing] the original motion to withdraw" while implying that the investigation could continue and "then we can figure out where that letter came from."

¶10 The court then asked Sharp to state the basis for his motion. Sharp responded that he had "misunderstood" the judge at the last hearing about whether he had "45 days to withdraw [his] guilty plea." Sharp also stated that his family told him that he should "let [his appointed counsel] go and bring on another attorney to represent [him]," but Sharp conceded that he did not have the funds to hire a new attorney. The prosecutor opposed Sharp's motion to withdraw, arguing that Sharp had given "no basis" for withdrawal and he had merely "changed his mind." The court then again found that Sharp's plea "was entered knowingly and voluntarily," explaining to Sharp, "I find that the Rule 11 colloquy was given in its entirety by reference to the actual plea form itself, which your attorney went over with you, and I see no other possible reason, no other basis possible, that—that, in fact, your plea could be withdrawn."³ Having denied the written motion to withdraw, the court scheduled the sentencing hearing. Before adjourning, the court again addressed the letter purportedly from Victim and indicated, "I'll get something from the prosecution talking about the letter ..., and we'll see what the investigator has to say about that. And ... based on what happens there, obviously, that will make our determination as to whether we're going to go forward or not."

¶11 At the sentencing hearing six weeks later, the court first inquired whether Sharp and his counsel had reviewed the presentence investigation report (the PSI). Counsel responded, "[W]e cannot go forward," and explained that Sharp's case "seems to be reassigned in [her] office"; that Sharp had written to the Utah State Bar complaining about counsel, the prosecutor, and the judge; and that counsel did not "feel like [she could] represent him." The court indicated that the bar complaint would not "do that" and asked for any other reason to delay. Counsel responded that the police were "investigating the source" of the letter purportedly from Victim and stated, "I think that investigation needs to be completed before we can go forward with sentencing." The court disagreed. After learning that Victim and her mother were present at the hearing, the court decided to proceed with sentencing. The court again asked if Sharp and his counsel had reviewed the PSI, and when counsel said she had not, the court told counsel that it would take a recess to allow for that review before sentencing. Counsel again protested that she could not represent Sharp and that the case was being reassigned. The court responded, "Well, I think you can represent him. The fact that he filed a bar complaint, to me—I mean, he filed one against me. He filed one against the prosecutor. I don't think that has any bearing on this."

¶12 When proceedings resumed after the recess, counsel indicated that she had reviewed the PSI with Sharp and that it contained no factual inaccuracies. Counsel reiterated that she did not think that they could proceed, citing the fact that the court did not have the alleged recantation letter. The court acknowledged that it did not have the letter but it had "the implication to what the letter is, though." Counsel responded that the "letter, item by item, is exculpatory in every event that was alleged in this case." The court then queried, "And how does that affect ... him knowing the plea?" Counsel answered, "[T]hat's being investigated by [the police]." Unsatisfied with that answer, the court tried again, asking "how that letter has anything to do with a person giving a knowing, voluntary, and intentional plea." Counsel responded, "Well, Your Honor, it's completely exculpatory, and that is being investigated by [the police]." The court then "accept[ed]" Sharp's objection, noting that Sharp had made his record.

¶13 Counsel then read Sharp's bar complaint aloud in court. Although the court acknowledged that counsel had said she could not "represent Mr. Sharp effectively in the sentencing," the court nevertheless asked counsel to "[g]o ahead," and she then presented argument pertaining to sentencing:

Mr. Sharp did

...