State v. Smith, 900087-CA
| Decision Date | 30 May 1991 |
| Docket Number | No. 900087-CA,900087-CA |
| Citation | 812 P.2d 470 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Joseph Michael SMITH, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Craig S. Cook (argued), Salt Lake City, for defendant and appellant.
R. Paul Van Dam, State Atty. Gen., Charlene Barlow (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.
Before GREENWOOD, JACKSON and RUSSON, JJ.
Appellant Joseph Michael Smith appeals the trial court's denial of his motion to withdraw his plea of no contest to the charge of attempted sexual abuse of a child, Utah Code Ann. §§ 76-4-101 and 76-5-404.1(2) (1990), a third degree felony. We affirm the trial court's decision.
Appellant was originally charged with aggravated sexual abuse of a child, a first degree felony, Utah Code Ann. § 76-5-404.1(3) and (4) (1990). Pursuant to a plea agreement with the State, appellant entered his plea of no contest to the charge of attempted sexual abuse in July 1987. Because the Utah Supreme Court issued State v. Gibbons, 740 P.2d 1309 (Utah 1987), on June 30, 1987, appellant's plea fell within the Gibbons rule that guilty or no contest pleas must be entered in strict compliance with Rule 11, Utah Rules of Criminal Procedure. 1
At the July 1987 plea hearing, appellant's counsel indicated that appellant was "unwilling to admit any culpability in connection with this offense at all," but was nevertheless willing to enter a no contest plea and to undergo sex offender rehabilitation treatment in lieu of incarceration. An affidavit was then submitted by appellant, indicating, among other Rule 11 requirements, that appellant understood the operation of his plea as a waiver of specific constitutional rights, and that the plea was voluntarily offered. The affidavit described the pleaded offense, stating that appellant had "[a]ttempted to touch the genitals of a child under the age of 14 w/intent to cause sexual gratification or pain."
The trial court explained to appellant that it considered the no contest plea to be equivalent to a guilty plea. Then, reviewing the affidavit, the court questioned appellant about his understanding of the pleaded offense, the State's trial burden of proving all elements of the offense beyond a reasonable doubt, the fact that by his plea he was giving up his constitutional trial rights, the possible penalties for the pleaded offense, and other matters.
Turning to the evidence of the charged offense, the trial court asked appellant if he had reviewed the evidence with counsel and if, upon such review, both he and counsel had concluded that the evidence could result in conviction after a jury trial. Appellant answered affirmatively. Appellant also confirmed the affidavit statement that no promises or threats had been made to secure his plea.
The State repeated the elements of the original sexual abuse charge and summarized the evidence that it believed would prove the elements of that offense beyond a reasonable doubt:
[I]f the State were to try this case, it's our position that we would have no difficulty proving the elements of the case, and specifically on or about September 24th of last year, 1986, that the defendant touched the genitals of ... a female child of 2 1/2 years of age, that he did so with the intent to either arouse or gratify his or her sexual desires or to inflict physical or emotional pain to this child or to himself.
It would be our understanding, Your Honor, as I indicated, that were we to try this case these facts would come out through the testimony of expert witnesses as well as the testimony of the child and in the form of video tape.
The colloquy between appellant and the trial court regarding the no contest plea also focused on appellant's desire to accept sex abuse treatment in lieu of incarceration. The trial court cautioned appellant that any agreement by the State to recommend treatment was not binding upon the court, and specifically addressed the likelihood that appellant's failure to admit the offense could bar his acceptance into treatment:
The court signed appellant's affidavit, announced its finding that appellant's no contest plea was knowingly and voluntarily offered, and accepted the plea.
Following the plea hearing, a ninety-day evaluation period ensued. A sentencing hearing was subsequently held in December 1987. The trial court expressed its ongoing concern with appellant's failure to admit guilt. An Adult Probation and Parole (AP & P) officer, speaking on behalf of the Bonneville sex abuser treatment facility, stated that appellant's ninety-day evaluation report indicated that some progress had been made by appellant toward admitting his offense. The AP & P officer indicated that the Bonneville program would accept appellant, with the understanding that he would be brought back into court if denial of his offense interfered with his treatment. The trial court then warned appellant that his probation, if granted, would depend upon satisfactory progress in the Bonneville program, as determined by the treatment staff there:
The alleged victim's mother also attended the sentencing hearing, and the trial court sought her approval of treatment instead of incarceration: The victim's mother agreed. The court repeated to appellant that it would rely on the Bonneville staff to set conditions for keeping appellant in treatment, subject only to the limit that those conditions not be "arbitrary or capricious." The court then imposed a sentence of zero to five years in the Utah State Prison, staying that sentence, and placing appellant on probation, provided appellant successfully participate in the Bonneville program as well as meet other conditions.
Two months later, in February 1988, appellant was back before the trial court on an order to show cause why his probation should not be revoked. The State contended appellant had failed to recall the facts of his offense, a key requirement for treatment under the Bonneville program. The probation revocation proceeding was continued pending a psychological evaluation of appellant and appellant's effort to find another treatment facility. Appellant's alternative facility rejected him because he did not admit his offense, and the psychological evaluation was apparently also unfavorable. In March 1988, appellant's probation was revoked, and he was sent to the Utah State Prison.
In September 1989, appellant, still incarcerated following two refusals by the board of pardons to grant parole, moved to withdraw his no contest plea. In December 1989, the trial court denied the motion, and this appeal followed.
Appellant argues that his motion to withdraw his no contest plea was erroneously denied because the affidavit he submitted He alleges two deficiencies under Utah R.Crim.P. 11 that mandate the withdrawal of his plea. First, that there was an inadequate factual synopsis of the acts making up the elements of the crime; and second, that his plea bargain agreement inadequately detailed what was expected of him under the plea.
and the hearing conducted by the court in connection with the plea were legally deficient.
The State first responds that appellant's motion to withdraw his plea was untimely; assuming the motion was timely, the State argues that it was properly denied.
At the sentencing hearing, the trial court commented that appellant's no contest plea would be "the first and last no contest plea for a charge like this that I received or will receive, which inherent in that is a lack of admission of guilt." A no contest, or "nolo contendere" plea has been recognized as a troublesome legal creature. See Fed.R.Crim.P. 11(b) advisory committee's note to 1974 amendment, and sources cited therein. The history of this case confirms that "[t]he defendant who asserts his innocence while pleading guilty or nolo contendere is often difficult to deal with in a correctional setting...." Fed.R.Crim.P. 11(f) advisory committee's note to 1974 amendment. While electing not to contest the State's case against him, appellant's failure to admit guilt also prevented rehabilitative efforts and ultimately resulted in his incarceration.
In Utah, a plea of no contest can only be made with the consent of court. Utah R.Crim.P. 11(3). Exercise of the trial court's broad discretion to refuse a no...
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