State v. Tarnawiecki

• Citation: 2000 Utah Ct. App. 186,5 P.3d 1222
• Decision Date: 15 June 2000
• Docket Number: No. 990225-CA.,990225-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Marha TARNAWIECKI, Defendant and Appellant.
• Court: Court of Appeals of Utah

5 P.3d 1222

2000 Utah Ct. App. 186

STATE of Utah, Plaintiff and Appellee, v. Marha TARNAWIECKI, Defendant and Appellant.

No. 990225-CA.

Court of Appeals of Utah.

June 15, 2000.

Lynn C. McMurray, McMurray, McMurray, Dale & Parkinson, Salt Lake City, for Appellant.

Jan Graham, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before GREENWOOD, P.J., JACKSON, Associate P.J., and BILLINGS, J.

OPINION

GREENWOOD, Presiding Judge:

¶ 1 Defendant appeals her conviction for violating a protective order, a class A misdemeanor, under Utah Code Ann. § 76-5-108 (1999). Defendant claims the trial court erred in denying her motion to extend the time to submit a motion to withdraw her guilty plea, arguing the court did not comply with legal requirements when it accepted her guilty plea. We vacate defendant's conviction and remand for further proceedings.

BACKGROUND

¶ 2 Defendant's conviction arises from a domestic dispute with her estranged husband, Mark Grosser, on May 18, 1998. At the time of the dispute, defendant had been properly served with and was subject to a valid protective order prohibiting her from "attempting, committing, or threatening to commit abuse or domestic violence against Mark Grosser." Defendant believed Grosser was about to take their child out of Utah. She called the police to have them prevent the removal of her child, and also called her attorney, who was unavailable.

¶ 3 Fearing police would not respond in time, defendant went to Grosser's house. During the altercation that ensued, defendant kicked Grosser in the buttocks. An information was filed charging defendant with violating a protective order, a class A misdemeanor, and assault, a class B misdemeanor. Additionally, the prosecutor notified defendant that she was subject to a felony enhancement under Utah Code Ann. § 77-36-1.1 (1997) because she had violated the protective order within the past five years.

¶ 4 On July 17, 1998, defendant pleaded guilty to violating the protective order. In exchange for her plea, the State agreed to drop the assault charge and not pursue the felony enhancement. During the plea hearing, defense counsel told the court he had "gone over a waiver of constitutional rights" and that the written plea agreement included the elements of the offense. The trial court then discussed with defendant the maximum sentence for a class A misdemeanor and briefly went over the elements of the crime. Next, the trial court stated: "And if you plead guilty, you are admitting that [you committed the offense]. You won't go to trial, see witnesses, have a jury, appeal, and all of those constitutional rights that Mr. Archuleta has gone over with you? You understand all of that?" Defendant proceeded to sign her plea affidavit and submitted it to the court, which accepted her guilty plea. The defendant's plea affidavit does not mention the right to a speedy trial before an impartial jury.

¶ 5 On September 17, 1998, defendant submitted a motion to extend the time to submit a motion to withdraw her guilty plea and a motion to withdraw her guilty plea. After a hearing, the trial court denied defendant's motion to extend time, determining that State v. Price, 837 P.2d 578, 583-84 (Utah Ct.App.1992), controlled and therefore the court lacked jurisdiction to consider defendant's arguments or the motion to withdraw her guilty plea. Defendant timely appealed the trial court's order.

ISSUES AND STANDARD OF REVIEW

¶ 6 Defendant claims that the trial court erred on three grounds: (1) the court erred by not allowing her extra time to submit a motion to withdraw her guilty plea because she was not properly advised of the thirty day limit; (2) the court erred in determining it lacked jurisdiction to consider her motion to withdraw the guilty plea; and (3) the trial court committed plain error in accepting her guilty plea without conducting the required colloquy on the record. Additionally, defendant argues that section 77-13-6 of the Utah Code is unconstitutional. These four issues all present questions of law which we review for correctness. See Salt Lake City Corp. v. Property Tax Div., 1999 UT 41, ¶ 9, 979 P.2d 346 (jurisdiction); State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191 (constitutionality of statute); State v. Holland, 921 P.2d 430, 433 (Utah 1996) (withdrawal of guilty plea); State v. Ostler, 2000 UT App 28, ¶ 6, 996 P.2d 1065 (plain error).

ANALYSIS

I. Was Defendant Properly Advised of the Thirty Day Limit

¶ 7 Defendant argues she is entitled to extra time to withdraw her guilty plea because the trial court failed to advise her of the thirty day time limit for filing a motion to withdraw a guilty plea.¹ Defendant claims the plea affidavit's reference to the thirty day limit was confusing and ambiguous, and provided inadequate notice of section 77-13-6's requirement.

¶ 8 In State v. Price, 837 P.2d 578, 582-83 (Utah Ct.App.1992), we recognized that Rule 11 of the Utah Rules of Criminal Procedure provides an exception to the thirty day requirement if the defendant is not advised that a motion to withdraw a guilty plea must be made within thirty days.² Immediately above defendant's signature, the plea affidavit states in bold type: "I understand that I have the right to withdraw this plea within 30 days of today's date as long as the request is in writing and for good cause shown." We fail to see how this language is confusing, is ambiguous, or gives inadequate notice of section 77-13-6's requirement that a motion to withdraw must be made within thirty days. Furthermore, the trial court is not required to cover every element of Rule 11 during the colloquy so long as the record reflects that the defendant was made aware of every right. See State v. Maguire, 830 P.2d 216, 218 (Utah 1991) ("[S]trict 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."). Defendant's plea affidavit clearly stated a motion to withdraw must be made within thirty days; defendant was not entitled to additional time under the exception in Rule 11(f).

II. Did the Trial Court Correctly Determine It Lacked Jurisdiction

¶ 9 Defendant argues that the trial court erred in determining that it lacked jurisdiction because the thirty day period does not start until a guilty plea is voluntarily entered. Under this novel argument, defendant claims the trial court must strictly comply with Rule 11 before section 77-13-6's thirty day limit is triggered. In other words, defendant contends that because the trial court did not conduct a proper colloquy with defendant—an argument considered later in this opinion—the guilty plea was a legal nullity. We disagree. Although there may have been errors in taking and entering the plea, the appropriate remedy is a timely motion to withdraw pursuant to section 77-13-6.

¶ 10 Moreover, in State v. Price, this court determined that section 77-13-6's thirty day period to bring a motion to withdraw is jurisdictional. See 837 P.2d 578, 583-84 (Utah Ct.App.1992). We are constrained by principles of stare decisis to apply Price to the facts of this case. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993); State v. Ostler, 2000 UT App 28, ¶ 7, 996 P.2d 1065. It is undisputed that defendant did not submit her motion to withdraw her guilty plea within thirty days of its entry. Because defendant failed to comply with section 77-13-6, the trial court properly determined that it lacked jurisdiction to consider defendant's motion to enlarge the time to bring her motion to withdraw.

III. Did The Trial Court Commit Plain Error In Accepting Defendant's Guilty Plea

¶ 11 Next, defendant argues that the trial court committed plain error by accepting her guilty plea without properly conducting the colloquy required by Rule 11.³ Specifically, defendant claims that the trial court failed to advise her of the factual basis for the charge against her, the minimum sentence, and the right to a speedy trial before an impartial jury. Although the trial court was precluded by Price from considering these arguments, this court can do so if defendant can persuade us plain error occurred or exceptional circumstances existed. See State v. Ostler, 2000 UT App 28, ¶ 8, 996 P.2d 1065. "To succeed on a claim of plain error, a defendant has the burden of showing `(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.'" Id. (quoting State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)) (alteration in original).

¶ 12 Utah's appellate courts have emphasized that "Rule 11(e) squarely places on trial courts the burden of ensuring that the constitutional and Rule 11(e) requirements are complied with when a guilty plea is entered." State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987). Importantly, strict compliance, rather than substantial compliance, with Rule 11 is required when accepting a guilty plea. See State v. Maguire, 830 P.2d 216, 217 (Utah 1991). Because the trial court must address each element of Rule 11 before accepting defendant's guilty plea, we address each claimed error by examining the record to determine if it contains a sufficient basis to satisfy the requirements of Rule 11.

¶ 13 Defendant claims the trial court failed to adequately set forth the factual basis to establish defendant committed the crime as required by Rule 11(e)(4)(B). In order to satisfy the factual basis requirement, "the record must reveal either facts that would support the prosecution of a defendant at trial or facts that would suggest a defendant faces a substantial risk of conviction at trial." State v. Stilling, 856 P.2d 666, 672 (Utah Ct.App.1993). Thus, a sufficient factual basis requires that the record contain evidence that the crime was committed and that defendant likely committed the crime. See id.

¶ 14 In this case, defendant was charged with violating...