State v. Smith, 870493
| Decision Date | 30 June 1989 |
| Docket Number | No. 870493,870493 |
| Citation | 777 P.2d 464 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. John Whitney SMITH, Defendant and Appellant. |
| Court | Utah Supreme Court |
D. Gilbert Athay, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Charlene Barlow, Salt Lake City, for plaintiff and appellee.
Defendant John Whitney Smith appeals from his conviction of sodomy on a child, a first degree felony, on the ground that the plea was not knowingly and voluntarily entered pursuant to rule 11(e) of the Utah Rules of Criminal Procedure. We reverse on those grounds and vacate the plea of guilty.
On July 24, 1986, defendant was charged with two counts of sodomy on a child, first degree felonies, in violation of Utah Code Ann. § 76-5-403.1 (Supp.1988), and one count of forcible sexual abuse, a second degree felony, in violation of Utah Code Ann. § 76-5-404 (Supp.1988). Thereafter, he signed a plea bargain affidavit which provided for counts two and three to be dropped upon a plea of guilty to one count of sodomy on a child. That plea was accepted by the trial court.
On November 20, 1987, pursuant to section 76-5-403.1(2), the trial court sentenced defendant to a minimum mandatory term of five years to life. A motion to vacate the sentence and set aside his guilty plea was subsequently denied, because of the pendency of this appeal.
Utah Code Ann. § 77-35-11(e) (Supp.1988), also known as rule 11(e) of the Utah Rules of Criminal Procedure, states in pertinent part:
(e) The Court may refuse to accept a plea of guilty or no contest and shall not accept such a plea until the court has made the findings:
....
(5) That the defendant knows the minimum and maximum sentence that may be imposed upon him for each offense to which a plea is entered, including the possibility of the imposition of consecutive sentences....
In State v. Gibbons, 740 P.2d 1309 (Utah 1987), this Court held that "11(e) squarely places on trial courts the burden of insuring that constitutional and rule 11(e) requirements are complied with when a guilty plea is entered." Id. at 1312. We based this holding on the rationale expressed in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) where the United States Supreme Court stated: "What is at stake for an accused facing [punishment] demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of consequence." Id. at 243-44, 89 S.Ct. at 1712-13.
In the case before us today, neither defendant's affidavit regarding the plea agreement nor the transcript of the plea itself contains language clearly and unequivocally advising him that by pleading guilty he was subjecting himself to a mandatory prison sentence of at least five years. He was not advised in the affidavit that the law required that he be sentenced to a mandatory term of imprisonment. The affidavit read in part:
I know that under the laws of Utah the possible maximum sentence that can and may be imposed upon my plea of guilty to the charge identified on page one of this Affidavit is as follows:
(a) Imprisonment in the Utah State Prison for a minimum mandatory term of five, ten, or fifteen years and which may be for life.
(b) And/or fined in any amount not in the excess of Ten Thousand Dollars ($10,000).
(Emphasis added.)
Defendant's affidavit misstated the sentencing options open to him. In State v. Gibbons, we discussed the elements necessary for a sufficient affidavit, finding that it must "clearly state the allowable punishment for the crimes charged...." Id. at 1313. Here, the form used standard language applicable to indeterminate sentences in a situation involving a minimum mandatory term. This language did not clearly state the allowable punishment. It was also misleading in that the phrase "possible maximum sentence that can and may be imposed" created the impression that a sentence of less than the mandatory term was possible. (Emphasis added.) Finally, reference to the "fine" option in alternative (b) of the affidavit created the implication that a fine could legally be imposed instead of a prison sentence.
The transcript of the plea process in open court also reflects the likelihood of confusion on this issue. At the time the plea was taken, the court asked:
And you understand that if you plead guilty to this offense, as is set out in this agreement, you could be--submit yourself to an imprisonment for a term--mandatory term of five, ten, or fifteen years up to life in the state penitentiary? Do you understand that?
(Emphasis added.)
The statement was ambiguous, and defendant was justified in misunderstanding that a mandatory term of at least five years in prison was the only legal sentencing alternative available to the judge pursuant to Utah Code Ann. § 76-5-403.1(2), the governing statute in this case. The statute provides that "sodomy upon a child is punishable as a felony of the first degree, by imprisonment in the state prison for a term which is a minimum mandatory term of five, ten, or fifteen years, and which may be for life."
Defendant may also have been misled into believing he was eligible for probation by paragraph 10 of his affidavit:
I am also aware that any charge or sentencing concessions or recommendations for probation or suspended sentences, including a reduction of the charge for sentencing, made or sought by either defense counsel or the prosecutor are not binding on the court and may not be approved or followed by the court.
Defendant never was eligible for probation pursuant to Utah Code Ann. § 76-5-406.5 (Supp.1988), the statute listing the circumstances required for probation or suspension of sentence. He did not come within the purview of section 76-5-406.5(1) because he was neither the victim's parent, stepparent, adoptive parent, nor legal guardian. Thus, he was subjecting himself to a mandatory prison sentence upon entry of a guilty plea.
In State v. Copeland, 765 P.2d 1266 (Utah 1988), we also considered a defendant's claim that he had misunderstood the sentencing requirement and that, therefore, his guilty plea was not knowingly and voluntarily made. In Copeland's plea bargain negotiation he was incorrectly led to understand that he would be punished either with a prison sentence or with a stay in the state hospital. This belief was erroneous under the applicable criminal statute. We held that he should therefore be permitted to withdraw his guilty plea because it was not knowingly and voluntarily made.
In order for defendant's guilty plea to be valid and in compliance with rule 11(e)(5) of the Utah Rules of Criminal Procedure and State v. Gibbons, the record must show that he was unequivocably and clearly informed about the sentence that would be imposed. Such evidence does not exist either in the affidavit regarding the plea bargain or in the transcript of the guilty plea. Thus, rule 11(e) and State v. Gibbons require the vacating of defendant's guilty plea on the ground that it was not knowingly and voluntarily made. Reversed and remanded.
I do not join the Court in setting aside defendant's plea of guilty because I am not persuaded that the plea was entered other than knowingly and voluntarily. I rely upon the following statements of the trial judge, counsel for the State, defense counsel, and defendant, all of which are extracted from the record of the proceedings at the time of arraignment:
It's been signed by myself and Mr. Oehler and Mr. John Whitney Smith.
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