York v. Shulsen

• Decision Date: 26 May 1994
• Docket Number: No. 920378-CA,920378-CA
• Citation: 875 P.2d 590
• Parties: Donald W. YORK, Petitioner and Appellant, v. Kenneth V. SHULSEN, et al., Respondents and Appellees.
• Court: Utah Court of Appeals

Page 590

875 P.2d 590

Donald W. YORK, Petitioner and Appellant, v. Kenneth V. SHULSEN, et al., Respondents and Appellees.

No. 920378-CA.

Court of Appeals of Utah.

May 26, 1994.

Rehearing Denied June 20, 1994.

Certiorari Denied Sept. 19, 1994.

Jerold D. McPhee, Salt Lake City (argued), for appellant.

Marian Decker (argued), Christine F. Soltis, and Jan Graham, Salt Lake City, for appellees.

Before BILLINGS, DAVIS, and ORME, JJ.

OPINION

BILLINGS, Presiding Judge:

Petitioner Donald W. York appeals from the denial of his petition for a writ of habeas corpus. We affirm.

FACTS

When reviewing an appeal from a dismissal of a habeas corpus petition, " 'we survey the record in the light most favorable to the findings and judgment.' " Bundy v. DeLand, 763 P.2d 803, 805 (Utah 1988) (quoting Velasquez v. Pratt, 21 Utah 2d 229, 232, 443 P.2d 1020, 1022 (1968)). We recite the facts accordingly. On June 17, 1984, petitioner purchased with cash an airline ticket to fly from California to Salt Lake City under the name of Dan Hill. After arriving in Salt Lake City later that day, he rented a car using the name Donald York and drove directly to the home of his ex-wife, Patricia York. Petitioner entered his ex-wife's home armed with a loaded gun, went to her bedroom and fired twelve to fourteen times, seriously wounding her and killing Jeff Longhurst.

After the shootings, petitioner surrendered himself to the Bountiful police. He told officers that there had been a fight at Patricia York's residence and asked whether his ex-wife and Longhurst were alive. He also told the police where to find the gun and shells, and that for what he had done he was going to hell and could no longer be a member of his church.

Petitioner was charged with first degree murder, a capital offense, in violation of Utah Code Ann. § 76-5-202 (1984), attempted second degree murder, a second degree felony, in violation of Utah Code Ann. §§ 76-5-203 (1979) and 76-4-102 (1983), and aggravated burglary, a first degree felony, in violation of Utah Code Ann. § 76-6-203 (1973). ¹ Petitioner pled not guilty.

Thereafter, petitioner tendered a notice of defense claiming that he was not guilty by reason of insanity or that he had diminished mental capacity at the time the offense occurred under Utah Code Ann. § 77-14-3 (1990). As a consequence, the court appointed Dr. Chris Ghicadus, M.D. and Dr. Heber C. Kimball, Ph.D., of the Davis County Mental Health Center, "to examine the defendant and investigate his mental condition."

Dr. Ghicadus examined defendant and concluded that he was "mentally competent to understand trial proceedings and would be able to assist in his defense." Further, he diagnosed petitioner as having borderline personality disorder, meaning that petitioner was "not 'insane' in a legal sense of the word, is not psychotic in a psychiatric sense, but has variances and neurotic traits that do not seriously interfere with [his] everyday life."

Similarly, Dr. Kimball concluded that "there is no medical history or evidence of any fugue or dissociative states which would have reduced his capacity to control his impulses at the time of the alleged crime," and that "[h]e shows no signs of any psychoses, illogical thinking, delusions or hallucinations. His train of thought appears to be normal." Both doctors suggested further testing in order to state firmly why petitioner had periods of memory lapse.

Pursuant to a plea bargain, petitioner pled guilty to reduced charges of second degree murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (1979), and attempted manslaughter, a third degree felony, in violation of Utah Code Ann. § 76-5-205 (1985). At the plea hearing, petitioner claimed he had no specific memory of the shootings; however, he indicated that nevertheless he desired to accept the plea agreement and plead guilty to both shootings. The trial court accepted his plea without formally inquiring into his competency, finding he "knowingly entered his plea of guilty" to both counts.

At the sentencing hearing, defense counsel requested a ninety-day diagnostic evaluation to investigate the "possibility that can't be discounted, that Mr. York does have some ... medically discoverable and treatable brain injury." Prior to sentencing, the court asked if there was any known reason why sentence should not be imposed, to which defense counsel responded negatively. Without inquiring into his competency, the court then sentenced petitioner to five years to life for the first offense and to zero to five years for the second offense, to be served consecutively at the Utah State Prison.

At the Prison, petitioner was examined and treated by Dr. Alma Carlisle, Ph.D., the prison psychologist. Dr. Carlisle conducted several hypnosis/therapy sessions with petitioner in 1985 and ultimately diagnosed him as having multiple personality disorder (MPD). His other personality was identified as Dan Hell. ²

As a result of the MPD diagnosis, petitioner filed a petition for a writ of habeas corpus on April 2, 1985. Petitioner did not move to withdraw his guilty plea or otherwise directly appeal his conviction. In February 1990, the trial court granted petitioner's motion for the appointment of a psychiatric expert to evaluate petitioner's "mental condition at the time his plea was entered," and appointed Dr. Alan E. Jeppsen, M.D., to evaluate him in preparation for a hearing on the habeas corpus petition.

An evidentiary hearing on the petition was held on July 3, 1991, at which petitioner, Dr. Carlisle, and Dr. Jeppsen testified. Petitioner claimed that he could not recall the details of the shootings or the entry of his guilty pleas. He further testified that he pled guilty on the advice of counsel with the understanding that this was the only way he could get treatment for his alleged amnesia. Dr. Carlisle testified that although petitioner probably suffered from MPD at the time of the shootings and his plea, he was nevertheless competent to have pled guilty. Dr. Carlisle explained that petitioner would have been able to think rationally, form a mental state of intent to kill, understand the nature of the proceedings and the nature of the crimes, and assist his attorney. Thus, he concluded that petitioner was competent to enter a guilty plea to the shootings. Dr. Jeppsen agreed with Dr. Carlisle's diagnosis of MPD; however, he testified that petitioner would not have been competent to plead guilty because of this psychiatric disorder.

The court denied the petition for a writ of habeas corpus, finding that although petitioner suffered from MPD at the time of the crimes and his plea, he was competent to plead guilty. Petitioner appeals the court's denial, arguing: (1) the trial court should have made a finding regarding his competency before accepting his change of plea to guilty; and (2) the habeas court erred in finding he was competent when he entered his guilty plea.

"[T]o successfully attack a guilty plea collaterally, a petitioner must demonstrate an obvious injustice or a substantial and prejudicial denial of a constitutional right in the reception of the plea and must show cause why he or she took no direct appeal." Summers v. Cook, 759 P.2d 341, 343 (Utah App.1988); accord Salazar v. Warden, 852 P.2d 988, 991 (Utah 1993). Petitioner did not directly appeal his conviction because the time for appeal had lapsed by the time he was diagnosed with MPD, and the State does not contend that as a result we should refuse to hear his petition. We further note that petitioner was not required to bring a motion to withdraw his guilty plea before filing a petition for habeas corpus. See Lancaster v. Cook, 753 P.2d 505, 506 (Utah 1988) (per curiam). Thus, our review is appropriate.

In reviewing appeals from a dismissal of a petition for a writ of habeas corpus, the trial court's conclusions of law are reviewed for correctness. However, in reviewing findings of fact "we survey the record in the light most favorable to the findings and judgment; and we will not reverse if there is a reasonable basis therein to support the trial court's refusal to be convinced that the writ should be granted."

Butterfield v. Cook, 817 P.2d 333, 336 (Utah App.) (citation omitted) (quoting Medina v. Cook, 779 P.2d 658, 658 (Utah 1989)), cert. denied, 826 P.2d 651 (Utah 1991).

I. FAILURE TO DETERMINE PETITIONER'S COMPETENCY BEFORE ACCEPTING GUILTY PLEA

A. Preservation of Issue for Appeal

The State asserts as a threshold matter that the majority of theories upon which petitioner relies in arguing that the trial court should have made a finding of competency before accepting his change of plea to guilty were not presented to the habeas court, and thus they have not been preserved for appellate review. This court will not consider issues raised for the first time on appeal absent plain error or exceptional circumstances. State v. Brown, 856 P.2d 358, 359 (Utah App.1993); accord State v. Mabe, 864 P.2d 890, 892-93 n. 6 (Utah 1993). An issue is preserved for appeal when "a party ... timely bring[s] the issue to the attention of the trial court, thus providing the court an opportunity to rule on the issue's merits." LeBaron & Assoc., Inc. v. Rebel Enter., Inc., 823 P.2d 479, 482-83 (Utah App.1991).

We conclude the issue of whether the plea-taking court should have made a competency inquiry before accepting petitioner's guilty plea was properly preserved for appeal. Although all of the legal arguments developed on appeal may not have been articulated below, the underlying issue was clearly before the habeas court, as were the facts upon which petitioner now relies on appeal. This issue was sufficiently brought to the habeas court's attention through petitioner's second amended petition and the evidence contained in the record.

B. Finding of Competency

Petitioner argues the original trial court erred in failing to investigate whether he was competent to enter a guilty...