State v. West , 92 Utah Adv. Rep. 4 ( 1988 )

DURHAM, Justice:

Defendant appeals from the trial court’s denial of his motion to withdraw his guilty plea. We reverse and remand.

On January 31, 1984, defendant was charged with sexual abuse of a child, then a first degree felony under Utah Code Ann. § 76-5-404.1(l)-{2) (Supp.1983) (amended 1984) carrying a sentence of five years to life. Based on that charge, defendant agreed to forego his right to a jury trial and to plead guilty to the second degree felony of attempted sexual abuse of a child. Pursuant to this plea bargain, the information was amended on February 9, 1984, to charge defendant with attempted sexual abuse of a child. Before defendant’s arraignment and sentencing, however, the Utah state legislature amended Utah Code Ann. § 76-5-404.1, making sexual abuse of a child a second degree felony. Thus, the crime to which defendant pleaded guilty, attempted sexual abuse of a child, was actually a third degree felony. See Utah Code Ann. § 76-4-102(3). Apparently, both parties and the court were unaware of this legislative change, and defendant was permitted to plead guilty to a second degree felony, a crime that no longer existed. Defendant was sentenced for the second degree felony on July 20, 1984.

Defendant submitted a motion to withdraw his guilty plea in Fourth District Court on June 17, 1985.¹ Acting as his own attorney, defendant maintained that he would not have pleaded guilty if he had known that the crime he had been charged with was only a third degree felony. Therefore, he argued, his plea was not knowing and voluntary. The State objected to the motion on the grounds that it was untimely and that defendant had already requested resentencing in a separate habe-as corpus proceeding before the Third District Court. The Fourth District Court denied defendant’s motion to withdraw his guilty plea on July 2, 1985.

On June 25, 1985, in a separate habeas proceeding, the parties stipulated before the Third District Court that defendant had been improperly sentenced to a second degree felony and was entitled to receive the lesser penalty for committing the third degree felony of attempted sexual abuse of a child. A copy of the stipulation was not transmitted to the Fourth District Court until August 23, 1985, when defendant was resentenced. This occurred almost two months after defendant’s motion to withdraw his guilty plea was denied. Defendant appeals the denial of his motion to withdraw his guilty plea, but not the disposition of his habeas corpus proceeding.

Even though defendant did not file a direct appeal from his original conviction, he does directly appeal the trial court’s denial of his motion to withdraw his. guilty plea, and we will consider those claims. A review of the record suggests that defendant was probably unaware of the irregularities and discrepancies surrounding his arraignment and sentencing. The record does not contain evidence suggesting that defendant was aware of the statutory confusion prior to sentencing. In its opposition to defendant’s motion to withdraw his plea, the State did assert that defendant and other parties were aware of the statutory changes, but no supporting affidavit or documentation was attached to the State’s argument. It is difficult to believe, therefore, that defendant would have allowed himself to be sentenced to a nonexistent crime if he, his counsel, and the court had been aware that the plea bargain was negotiated pursuant to a mutual misunderstanding. See, e.g., State v. Chavez, 130 Ariz. 438, 636 P.2d 1220 (1981).

The dissenting opinion argues that defendant is precluded from directly appealing the trial court’s denial of his motion because it is a successive postconviction complaint. Under Utah authority, however, defendant’s failure to raise an issue of which he was aware, or should have been aware, at the time of conviction or appeal is not necessarily determinative of his petition. This Court has frequently addressed the merits of habeas claims even though the issues were not raised at the time of conviction or on direct appeal. See, e.g., Chess v. Smith, 617 P.2d 341 (Utah 1980); Gonzales v. Morris, 610 P.2d 1285 (Utah 1980); Pierre v. Morris, 607 P.2d 812 (Utah), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980); Martinez v. Smith, 602 P.2d 700 (Utah 1979); Helmuth v. Morris, 598 P.2d 333 (Utah 1979); Rammell v. Smith, 560 P.2d 1108 (Utah 1977); Allgood v. Larson, 545 P.2d 530 (Utah 1976); Brown v. Turner, 21 Utah 2d 96, 440 P.2d 968 (1968). Many of these cases presented situations less unusual than that now before us. Thus, defendant’s failure to raise his claim on direct appeal is not dispositive.

Postconviction hearings are also governed by Utah Rule of Civil Procedure 65B(i), which states in relevant part:

(2) ... The complaint shall also state whether or not the judgment of conviction that resulted in the confinement complained of has been reviewed on appeal, and if so, shall identify such appellate proceedings and state the results thereof.

The complaint shall further state that the legality or constitutionality of his commitment or confinement has not already been adjudged in a prior habeas corpus or other similar proceeding; and if the complainant shall have instituted prior similar proceedings in any court, state or federal, within the state of Utah, he shall so state in his complaint, shall attach a copy of any pleading filed in such court by him to his complaint, and shall set forth the reasons for the denial of relief in such other court. In such case, if it is apparent to the court in which the proceeding under this Rule is instituted that the legality or constitutionality of his confinement has already been adjudged in such prior proceedings, the court shall forthwith dismiss such complaint, giving written notice thereof by mail to the complainant, and no further proceedings shall be had on such complaint.

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(4) All claims of the denial of any of complainant’s constitutional rights shall be raised in the postconviction proceeding brought under this Rule and may not be raised in another subsequent proceeding except for good cause shown therein.

Even though both of defendant’s postconviction proceedings involved similar (but not the same) issues, rule 65B(i) does not prevent our consideration of his claims. First, as discussed above, defendant was apparently unaware that he had been charged with a nonexistent crime. Thus, his claim was not the subject of an appellate proceeding. Importantly, rule 65B(i) has no provision to dismiss or deny a complaint brought on grounds which were or should have been subjects of prior appellate proceedings. It merely requires dismissal of matters which were previously “adjudged” in habeas corpus or postconviction hearings. This suggests that the rule is not intended to prevent a defendant from bringing a postconviction complaint even if he raised or could have raised the issue in prior appellate proceedings. Subsection (2) of 65B(i) outlines the procedure to be followed when determining whether to dismiss a postconviction complaint. It specifies that if the legality or constitutionality of the incarceration in question has been previously adjudicated, then the complaint must be dismissed. By contrast, it only requires that the court be informed of pending postconviction hearings and does not require dismissal until the court is shown that the issues before it have been “adjudged.”

Subsection (4) merely states that successive postconviction complaints for constitutional claims, as opposed to legal claims, can be raised only where good cause is shown. Defendant’s motion to withdraw his guilty plea, prepared pro se, is specifically based upon good cause. Although defendant might have drafted the motion more artfully, his intention was clear. Given the unique circumstances which led to defendant’s initial plea, this case appears to fit the good cause exception to rule 65B(i)(4).

The dissent asserts that subsection (4) prohibits the raising of any issue in successive postconviction complaints that might have been raised at a prior time. This is incorrect. As noted, subsection (4) allows any number of postconviction complaints if good cause is shown. Additionally, subsection (4) is limited by its plain language to constitutional claims.² It has no application to nonconstitutionally based legal claims. Finally, the specific procedures in subsection (2) would prevail over the general phrase of admonishment in subsection (4). It would require an unjustified extension of the meaning of 65B(i)(4) to argue that all claims must be raised in prior complaints. Instead, subsection (4) merely illuminates and provides an avenue, through good cause, for raising constitutional claims in subsequent hearings.

Second, even though defendant was simultaneously involved in two postconviction hearings, neither had been “adjudged” before the other was heard. The motion for withdrawal of plea was signed June 17, 1985, and filed with the court on July 2, 1985, the same day it was denied. The petition for a writ of habeas corpus in the Third District Court was concluded through stipulation of the parties on June 25, 1985. The stipulation and order were not filed, and the Fourth District Court did not receive official notice until August 23, 1985, when defendant was resentenced by the Fourth District Court. Defendant's resen-tencing took place subsequent to the Fourth District Court’s denial of his motion to withdraw his plea. Because both proceedings took place at virtually the same time, it was impossible for either court to properly dismiss the complaint before it on the ground that the matter had been previously “adjudged” in another court, as required by rule 65B(i)(2).

Similarly, rule 65B(i)(4) prohibits constitutional claims from being raised in subsequent proceedings. In this case, defendant raised the issues before either proceeding was concluded. Thus, neither proceeding was subsequent to the other, and both occurred simultaneously. In fact, each court was hearing a somewhat different matter, and neither was finally adjudged so that the second could be dismissed pursuant to the language of rule 65B(i). We echo the sentiments of Chief Justice Crockett, who, speaking for a unanimous court, stated:

It is true that we have repeatedly declared that any claims of error or impropriety should be asserted in the regular procedure provided for on appeals and that, if that is not done, the writ of habeas corpus may not be used as a belated appeal. Nevertheless, howsoever desirable it may be to adhere to the rules, the law should not be so blind and unreasoning that where an injustice has resulted the victim should be without remedy. For that reason, as indicated in the cited cases, the writ should be available in rare cases, where it appears that there is a strong likelihood that there has been such unfairness, or failure to accord due process of law, that it would be wholly unconscionable not to reexamine the conviction.

Martinez v. Smith, 602 P.2d 700, 702 (Utah 1979) (footnotes omitted).

The provisions of rule 65B(i) do serve to promote justice. However, its language may at times conflict with the most just result in any given case. As the United States Supreme Court said in a recent decision: “ ‘In appropriate cases’ the principles of comity and finality that inform the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.’ ” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2650, 91 L.Ed.2d 397 (1986) (citations omitted). We do not advocate a wholesale disregard for rule 65B(i) or for the general prohibition against successive postconviction complaints. Instead, where an injustice results and the rule allows, we will permit a cause to be heard.

We will reverse a trial court’s decision on a motion to withdraw a guilty plea if the trial court abused its discretion. State v. Mildenhall, 747 P.2d 422 (Utah 1987). Defendant’s claim herein is that he did not knowingly and voluntarily enter his guilty plea. See Utah Code Ann. § 77-35-ll(e)(l)-(2) (Supp.1987); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Hammond v. United States, 528 F.2d 15 (4th Cir.1975), the defendant assumed he could be sentenced for up to 90 years if found guilty at trial. In reality, the governing law allowed him to be sentenced only to a maximum of 55 years. The Court of Appeals reversed the trial court’s dismissal of defendant’s motion to vacate his sentence and, in so doing, stated:

[I]n order to plead voluntarily, a defendant must know the direct consequences of his plea, including the actual value of any commitments made to him. Where, as here, counsel’s alleged advice, corroborated by the information supplied by the court, grossly exaggerated the benefit to be derived from the pleas of guilty, it would follow that the pleas were not voluntary.

Id. at 19;³ see also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The defendant here was charged with a first degree felony, carrying a sentence of five years to life. He agreed to forego his right to a jury trial in return for a reduced conviction and sentence for a second degree felony (carrying a sentence of one to fifteen years). In reality, the offense with which he was charged was punishable as a third degree felony (with a sentence of zero to five years). Thus, defendant appears on the face of the record to have received nothing in return for his guilty plea. Having pleaded guilty to the crime he should have been charged with in the first place, he now claims that he received no reduction in degree or sentence and avoided no risk.

To deny defendant relief on the merits, we would have to assume that he willingly bargained to plead guilty, expecting and receiving nothing in return. This assumption is highly speculative and implausible where a plea bargain is involved. The nature of plea bargains requires the exchange of consideration, allowing the parties involved to reach a mutually desirable agreement. A plea bargain is a contractual relationship in which consideration is passed. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); 2 Wharton’s Criminal Procedure § 341 (1975). In fact, the remedy for a defendant where the State fails to fulfill its side of the bargain is frequently specific performance. See 81 C.J.S. Specific Performance § 103 (1977); Annotation, Supreme Court’s Views as to Plea Bargaining and its Effects, 50 L.Ed.2d 876 (1978). A plea bargain does not involve a situation where a defendant willingly pleads guilty to a crime, neither asking nor expecting anything in return.

The defendant herein apparently received seriously deficient information from all persons involved in his case. He argues that any benefit he might have derived from the bargain was misunderstood. For us to assert that there was no miscalculation would be patently incorrect without a factual record. It would be equally implausible to assume that defendant would have bargained to plead guilty expecting nothing in return if the facts are as defendant asserts.

Thus, if the record demonstrates an abuse of discretion because defendant’s plea was not voluntarily and knowingly made, the decision below should be reversed. Unfortunately, the record now before us is inadequate to allow us to draw a conclusion as to whether defendant demonstrated good cause for withdrawal of his guilty plea. There is no indication of the nature of the evidence and argument in the court below on the motion to withdraw the plea. Indeed, it appears that the trial court may have viewed the resentencing procedure as dispositive of the plea withdrawal motion and denied the same without a hearing. Therefore, we remand this case to the lower court for an evidentiary hearing and factual findings as to whether defendant’s original guilty plea was entered knowingly and voluntarily.

STEWART and ZIMMERMAN, JJ., concur.

1 . Defendant’s motion was not recorded as being filed with the court clerk until July 2, 1985. The State’s response, however, was filed with the court on June 25, 1985. Therefore, the process was commenced on or before June 25, 1985.

2 . Subsection (2) refers to legal or constitutional bases which underscore the difference between subsection (2) and subsection (4).

3 . The dissent suggests that Hammond is not apposite to a discussion of multiple postconviction complaints. We agree. Hammond is cited only to demonstrate the validity of defendant’s position on the merits of his motion to withdraw his guilty plea.