State v. Visser, 971760-CA
| Decision Date | 28 January 1999 |
| Docket Number | No. 971760-CA,971760-CA |
| Citation | 973 P.2d 998 |
| Parties | 361 Utah Adv. Rep. 52 STATE of Utah, Plaintiff and Appellee, v. Brad VISSER, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Margaret H. Olson, Salt Lake City, for Appellant.
Jan Graham and Joanne C. Slotnik, Salt Lake City, for Appellee.
Before WILKINS, P.J., GREENWOOD, Associate P.J., and BENCH, J.
¶1 Defendant Brad Visser appeals the trial court's denial of his motion to withdraw his 1997 guilty plea to Rape, claiming that in taking his plea, the trial court did not strictly comply with Rule 11(e) of the Utah Rules of Criminal Procedure. We reverse the trial court's denial of defendant's motion to withdraw his plea and remand for further proceedings.
¶2 On October 16, 1996, defendant was charged by information with Aggravated Sexual Assault of a sixteen-year-old girl. Aggravated Sexual Assault is a first degree felony carrying a minimum mandatory sentence. At the time of the alleged incident, defendant was seventeen years old and was accordingly charged in the juvenile court.
¶3 Pursuant to the Serious Youth Offender provisions of Utah Code Ann. § 78-3a-602 (1996), defendant was bound over to the district court, after a preliminary hearing in juvenile court. Defendant consistently stated he would not accept plea offers from the prosecution. However, on the eve of trial, two of defendant's key witnesses refused to testify. At trial, the victim denied writing a note that defendant alleged she authored and that defendant's counsel hoped to use for impeachment. After the victim denied authoring the note, defendant's trial counsel abruptly called for a recess, during which he urged defendant to plead guilty to rape. After discussion with his counsel, defendant decided to accept the plea.
¶4 Following this one hour recess, the trial court conducted a plea colloquy with defendant. The relevant portion of the plea colloquy follows:
....
Following this exchange, defendant pleaded guilty to Rape, a first degree felony, in violation of Utah Code Ann. § 76-5-402 (1995). The trial court found that in so pleading, defendant was aware of his legal and constitutional rights, that he had "freely and voluntarily waived those rights," that the plea was knowing and voluntary, and that there was a factual basis for the plea. Before sentencing, however, defendant fired his trial counsel, engaged new counsel, and timely moved to withdraw his guilty plea. See Utah Code Ann. § 77-13-6 (1995) (). On August 8, 1997, the trial court held a hearing on defendant's motion to withdraw the guilty plea (the withdrawal hearing), at which both defendant and his trial counsel testified.
¶5 After the withdrawal hearing, the trial court entered findings of fact. The trial court found defendant's testimony about his state of mind and lack of understanding when he entered his guilty plea "to not be credible." The trial court also entered the following findings which are relevant to our analysis:
28. The Court finds that when this plea was taken, that Mr. Visser was in the middle of his jury trial.
29. The Court finds that Mr. Visser was present when the jury was selected, that he participated in the selection process.
30. The Court finds that Mr. Visser understood the jury selection and asked or was asking questions regarding the jurors.
31. The Court finds that Rule 11(e)(4) must be strictly complied with in the procedural context of the case.
32. The Court finds that the obligation under Rule 11 is that the questioning be relevant and understandable in relation to the particular case circumstance.
33. The Court finds Rule 11 must be applied in the context of the particular case.
34. The Court finds that it did not specifically ask if Mr. Visser understood that he had a right to a speedy trial, but in the context of Mr. Visser being in the middle of his trial asked, "do you understand that you have a right to go through with the trial, and that you have the right to see that the trial is conducted fairly and properly[?]" That this is, in the context of the case before the Court, a proper Rule 11 question.
¶6 The trial court entered an order denying defendant's motion to withdraw his guilty plea and this appeal followed.
¶7 Defendant raises several arguments as to why the trial court should have allowed him to withdraw his guilty plea; however, we address only one--his assertion that his plea was not taken in strict compliance with Rule 11(e) of the Utah Rules of Criminal Procedure.
¶8 In most cases, "[w]e review a trial court's denial of a motion to withdraw a guilty plea under an abuse-of-discretion standard." State v. Blair, 868 P.2d 802, 805 (Utah 1993). Consequently, "[t]he trial court's findings of fact made in conjunction with its decision will not be set aside unless they are clearly erroneous." Id.; see also State v. Penman, 964 P.2d 1157, 1160 (Utah Ct.App.1998). However, "if the trial court failed to strictly comply with Rule 11 ... in taking the defendant's guilty plea, and subsequently denies the withdrawal of the plea, the trial court has exceeded its permitted range of discretion as a matter of law." State v. Mills, 898 P.2d 819, 821 (Utah Ct.App.1995).
¶9 "A plea of guilty ... may be withdrawn only upon good cause shown and with leave of the court." Utah Code Ann. § 77-13-6(2)(a) (1995). Although we afford a plea of guilty a strong presumption of validity, presentence motions to withdraw a guilty plea are, generally, to be liberally granted. See State v. Gallegos, 738 P.2d 1040, 1042 (Utah 1987); State v. Thorup, 841 P.2d 746, 747 (Utah Ct.App.1992), cert. denied, 853 P.2d 897 (1993). Nonetheless, "one who would set a plea aside has the burden of proving that there is a legal ground for doing so." State v. Thurston, 781 P.2d 1296, 1301 (Utah Ct.App.1989).
¶10 Defendant argues that the trial court did not strictly comply with Rule 11(e) in accepting his guilty plea. He claims his plea was entered involuntarily because he was not advised of his right to a speedy trial before an impartial jury, or that he was waiving this right by pleading. Therefore, defendant urges us to reverse the trial court's denial of his motion to withdraw his guilty plea.
¶11 The State counters that the trial court strictly complied with Rule 11 in taking defendant's guilty plea. The State argues that, under the particular circumstances of this case--because the plea was taken midway through trial--the trial court was not required to recite the defendant's right to a "speedy public trial before an impartial jury" as articulated in Rule 11(e)(3). Therefore, the State contends, defendant should not be allowed to withdraw his plea.
¶12 Rule 11(e) of the Utah Rules of Criminal Procedure states:
The court ... may not accept the [guilty] plea until the court has found:
....
(2) the plea is voluntarily made;
(3) the defendant knows of the right to the presumption of innocence, the right against compulsory self-incrimination, the right to a speedy public trial before an impartial jury, the right to confront and cross-examine in open court the prosecution witnesses, the right to compel the attendance of defense witnesses, and that by entering the plea, these rights are waived;
....
Utah R.Crim. P. 11(e) (emphasis added).
¶13 In State v. Gibbons, 740 P.2d 1309, 1313-14 (Utah 1987), the Utah Supreme Court held that trial judges are responsible for strict compliance with Rule 11(e). "Rule 11(e) squarely places on trial courts the burden of ensuring that constitutional and Rule 11(e) requirements are complied with when a guilty plea is entered." Id. at 1312. This burden " '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 its consequence.' " Id. (quoting ...
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