State v. Trotter ( 2014 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2014 UT 17
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
STATE OF UTAH ,
Plaintiff and Appellee,
v.
KENNETH TROTTER,
Defendant and Appellant.
No. 20111056
Filed May 20, 2014
The Honorable G. Michael Westfall
Fifth District, Cedar City Dep’t
No. 071500541
Attorneys:
Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen.,
Salt Lake City, for plaintiff
J. Bryan Jackson, Matthew D. Carling, Cedar City, for defendant
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,
JUSTICE PARRISH , and JUSTICE LEE joined.
JUSTICE DURHAM , opinion of the Court:
INTRODUCTION
¶1 In 2007, Kenneth Trotter pled guilty to unlawful sexual
conduct with a minor. Mr. Trotter later moved to withdraw his
guilty plea, claiming it was not made voluntarily or knowingly
because his defense counsel and the trial court failed to advise him
that his plea would carry with it the requirement that he register as
a sex offender. Mr. Trotter argued that this failure amounted to
ineffective assistance of counsel in violation of the Sixth Amendment
and a violation of rule 11 of the Utah Rules of Criminal Procedure.
The district court denied Mr. Trotter’s motion to withdraw because
it held that the registration requirement was a collateral consequence
of the guilty plea, and therefore neither defense counsel nor the
district court had an obligation to inform him of that consequence.
Mr. Trotter appeals that denial.
¶2 We hold that the requirement to register on the state’s sex
offender registry is properly classified as a collateral consequence of
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Opinion of the Court
a defendant’s guilty plea. Therefore, neither defense counsel nor the
trial court is constitutionally compelled to inform a defendant of the
registration requirement before a guilty plea may be accepted as
knowing and voluntary. We thus affirm the decision of the district
court.
BACKGROUND
¶3 In 2007, Mr. Trotter, then twenty years old, was arrested and
charged for having sexual intercourse with two minor girls between
the ages of fourteen and sixteen. Mr. Trotter’s public defender
advised him to plead guilty to the unlawful sexual conduct in
exchange for a reduction of his charge to a class A misdemeanor. It
appears from the record that neither defense counsel nor the trial
court informed Mr. Trotter that if he pled guilty, he would be
required to register on the state’s sex offender registry. The trial
court followed the procedures outlined by rule 11 of the Utah Rules
of Criminal Procedure to confirm with Mr. Trotter that his plea was
freely, knowingly, and voluntarily given. Mr. Trotter acknowledged
this fact in writing, and the plea was subsequently accepted by the
court in March 2009.
¶4 Mr. Trotter later hired private counsel and filed a motion
requesting to withdraw his guilty plea. Mr. Trotter argued that his
plea was not made voluntarily and knowingly as required by the
Due Process Clause of the United States Constitution and Utah Code
section 77-13-6(2)(a) (Plea Withdrawal Statute) because the trial court
did not inform him of the sex offender registration requirement.
Alternatively, he claimed that his public defender’s failure to inform
him of the registration requirement amounted to ineffective
assistance of counsel in violation of the Sixth Amendment. At this
point, Mr. Trotter’s sole argument was that the registration
requirement was a direct rather than collateral consequence of his
guilty plea, meaning that the court and defense counsel were
obligated to ensure he understood the requirement prior to his
submitting—and the court accepting—his guilty plea. The State
responded by arguing that sex offender registration was a collateral
consequence of the plea, so that neither the court nor defense
counsel was constitutionally obligated to disclose this consequence
for his plea to be valid. In July 2011, the trial court denied
Mr. Trotter’s motion to withdraw his plea, holding that the
requirement to register on the sex offender registry, despite its
definite and automatic nature, was not a direct consequence of the
plea.
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¶5 Three months later, but prior to his sentencing, Mr. Trotter
again attempted to withdraw his guilty plea in October 2011, this
time advancing a new argument for withdrawal. Mr. Trotter argued
that the United States Supreme Court’s decision in Padilla v.
Kentucky, 559 U.S. 356 (2010)—which stated that defendants have a
constitutional right to be informed of the deportation risks of a guilty
plea—should also extend to the sex offender registration
requirement. Mr. Trotter argued that Padilla rendered the distinction
between direct and collateral consequences of a guilty plea
immaterial whenever a consequence is severe enough to warrant
discarding it. And due to the severity of the consequence of sex
offender registration, Mr. Trotter urged the trial court to extend
Padilla’s reasoning to the sex offender registry context and to
conclude that because he was not informed of the registration
requirement, his guilty plea was not knowing and voluntary and
was therefore invalid. The district court rejected Mr. Trotter’s
arguments and denied his second motion to withdraw his plea. In
November 2011, the court entered a judgment and sentence against
Mr. Trotter on the unlawful sexual conduct charge. Mr. Trotter now
appeals the district court’s denial of his motion to withdraw his plea.
STANDARD OF REVIEW
¶6 Though appellate review of a district court’s denial of a
motion to withdraw a guilty plea could implicate questions of law,
questions of fact, and mixed questions of law and fact, the questions
before us on this appeal—concerning the scope of Padilla and
whether sex offender registration is a direct or collateral
consequence of a plea—are pure questions of law reviewed for
correctness. See State v. Candland, 2013 UT 55, ¶¶ 9–10, 309 P.3d 230.
See also Commonwealth v. Abraham, 62 A.3d 343, 346 (Pa. 2012)
(reviewing similar questions de novo).
ANALYSIS
¶7 As noted above, Mr. Trotter advances two related
arguments in support of his claim that the district court erred when
it denied his motion to withdraw his guilty plea. Both arguments
hinge on the fact that he was not informed, prior to entry of his
guilty plea, that if he pled guilty he would be required to register as
a sex offender. Mr. Trotter claims that the district court and his
defense counsel were both required to inform him of this
consequence and that by failing to do so, the district court violated
rule 11 of the Utah Rules of Criminal Procedure and his defense
counsel rendered constitutionally deficient performance under the
Sixth Amendment to the United States Constitution.
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Opinion of the Court
¶8 We note that Mr. Trotter’s claim of error on the part of the
district court is improperly framed as a violation of rule 11.
Mr. Trotter incorrectly assumes that rule 11 is the source of his right
to withdraw a guilty plea that is unknowing and involuntary. The
actual source of this right is the federal Due Process Clause; its
derivative “knowing and voluntary” standard is further codified in
Utah’s Plea Withdrawal Statute. See State v. Alexander, 2012 UT 27,
¶ 19, 279 P.3d 371 (“Although rule 11 provides guidance for the
entry of guilty pleas, any attempt to withdraw that plea is governed
by statute. . . . This statutory [‘knowing and voluntary’] standard
mirrors the showing necessary for defendants to prove that their
pleas are unconstitutional.” (footnotes omitted)). And as we recently
clarified in Alexander,
compliance with rule 11 is not mandated by the
Plea Withdrawal Statute or by the U.S.
Constitution. . . . Thus, even if there was a violation
of rule 11 during the plea hearing, appellate courts
must continue to inquire into whether there is
evidence that the plea was nonetheless knowingly
and voluntarily made.
Id. ¶ 25. Accordingly, if a defendant’s guilty plea was not knowing
and voluntary and the district court refuses to allow a defendant to
withdraw that plea, the federal Due Process Clause and our Plea
Withdrawal Statute—not rule 11—would mandate that we reverse
the district court’s decision. We therefore proceed under the
framework provided in Utah’s Plea Withdrawal Statute.
¶9 Judges have discretion to grant a defendant’s motion to
withdraw a guilty plea only when “a defendant’s plea was not
knowingly and voluntarily entered.” State v. Ruiz, 2012 UT 29, ¶ 32,
282 P.3d 998 (recognizing that the revised Plea Withdrawal Statute
did away with the broad discretion previously given to judges on
this matter); see also UTAH CODE § 77-13-6(2)(a) (2007). A guilty plea
is made voluntarily and knowingly only if the defendant is “fully
aware of the direct consequences” of his plea. Brady v. United States,
397 U.S. 742, 755 (1970) (internal quotation marks omitted). A direct
consequence “is one that will have a definite, immediate and largely
automatic effect on the range of the defendant’s punishment such as
lack of eligibility for parole.” State v. Smit, 2004 UT App 222, ¶ 29, 95
P.3d 1203 (internal quotation marks omitted). A collateral
consequence, on the other hand, is one that is unrelated to the length
and nature of the sentence imposed on the basis of the plea. See
United States v. Hurlich, 293 F.3d 1223, 1231 (10th Cir. 2002); State v.
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McFadden, 884 P.2d 1303, 1304 (Utah Ct. App. 1994). The Sixth
Amendment’s right to counsel compels defense attorneys to ensure
a defendant is aware of the direct consequences of his or her plea, see
Brady, 397 U.S. at 755, while rule 11 of the Utah Rules of Criminal
Procedure reflects the trial court’s responsibility to do the same,
Alexander, 2012 UT 27, ¶¶ 16–17.
¶10 Mr. Trotter argues that after Padilla v. Kentucky, 559 U.S. 356
(2010), the direct versus collateral consequence distinction is no
longer relevant in determining whether defense counsel must inform
a defendant regarding a particular consequence resulting from a
guilty plea. Therefore, he argues, defendants should have a
constitutional right to be informed of the sex offender registration
consequence prior to entering their guilty plea, regardless of
whether that consequence is deemed direct or collateral to the plea.
Alternatively, Mr. Trotter asserts that even if the direct versus
collateral distinction survived Padilla, the sex offender registration
requirement is properly characterized as a direct rather than a
collateral consequence of a defendant’s guilty plea.
¶11 We disagree with both arguments. We conclude that Padilla
did not dissolve the constitutional significance between direct and
collateral consequences in contexts other than deportation. We
further hold that the sex offender registration requirement is a
collateral consequence, and therefore neither defense counsel nor the
trial court was obligated to disclose it.
I. DEFENSE COUNSEL DID NOT PROVIDE
CONSTITUTIONALLY DEFICIENT ASSISTANCE BY
FAILING TO INFORM MR. TROTTER THAT HE WOULD
BE REQUIRED TO REGISTER AS A SEX OFFENDER
AS A CONSEQUENCE OF HIS GUILTY PLEA
¶12 Mr. Trotter claims that his public defender provided
ineffective assistance of counsel by failing to advise him that
pleading guilty would result in his registration as a sex offender. As
noted above, the Sixth Amendment generally requires defense
counsel to inform clients of direct but not collateral consequences of
a guilty plea. But Mr. Trotter would have us hold either that Padilla
eviscerated the direct versus collateral distinction and that guilty
pleas are always unknowing and involuntary unless defendants are
informed of the sex offender registration requirement, or
alternatively that the registration requirement is a direct
consequence of his plea. The State responds that the direct versus
collateral dichotomy survived Padilla and that the registration
requirement is properly characterized as a collateral consequence.
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Accordingly, the State argues that the Sixth Amendment did not
compel Mr. Trotter’s defense counsel to inform him that he would
be required to register as a consequence of his guilty plea.
¶13 Generally, to resolve a claim of ineffective assistance of
counsel, we would apply the two-prong test from Strickland v.
Washington, 466 U.S. 668, 687 (1984), which requires the defendant
to demonstrate that his or her defense counsel provided
constitutionally deficient performance that resulted in prejudice.
However, when the alleged deficient performance is defense
counsel’s failure to inform a client of a particular consequence of a
guilty plea, we must first consider whether Strickland applies at all.
Chaidez v. United States, __ U.S. __, 133 S. Ct. 1103, 1110 (2013). To do
so, we must determine whether the particular consequence was
direct or collateral to the plea. If direct, the Sixth Amendment’s
protections are triggered and we must undertake a Strickland
analysis; if collateral, however, most courts hold—and we agree—
that defense “counsel’s failure to inform a defendant of the collateral
consequence[]. . . is never a violation of the Sixth Amendment.” Id.
at 1109 (internal quotation marks omitted).
¶14 In Chaidez, the Court explained that when it approached the
ineffective assistance issue in Padilla, its “first order of business was
. . . to consider whether the widely accepted distinction between
direct and collateral consequences categorically foreclosed Padilla’s
[Sixth Amendment] claim.” Id. at 1111. The Court noted that nearly
every state court and all lower federal courts that have addressed
this issue have held that the “Sixth Amendment does not require
attorneys to inform their clients of a conviction’s collateral
consequences.” Id. at 1109. Indeed, the Court recognized that
exclusion of advice about collateral consequences from the Sixth
Amendment’s scope was “one of the most widely recognized rules
of American law.” Id. (internal quotation marks omitted). And
although the Chaidez Court did not expressly endorse the majority
rule,1 it clarified that Padilla did not “eschew the direct-collateral
1
Although the United States Supreme Court has not directly
answered the question whether there may be circumstances under
which advice about a matter deemed collateral violates the Sixth
Amendment, the clear majority rule is that “counsel’s failure to
inform a defendant of the collateral consequences of a guilty plea is
never a violation of the Sixth Amendment.” Chaidez, __ U.S. at __,
133 S. Ct. at 1109 (internal quotation marks omitted). We likewise
hold that advice about collateral consequences is categorically
(continued...)
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Opinion of the Court
divide across the board,” but simply recognized that the distinction
was “ill-suited” to the unique circumstance of deportation. Id. at
1112 (internal quotation marks omitted).
¶15 We thus turn our attention first to the issue of whether
Utah’s sex offender registration requirement is sufficiently akin to
deportation such that the direct-collateral divide is “ill-suited” to
dispose of Mr. Trotter’s claims. Since we hold that it is not, we then
consider whether the registration requirement is properly
categorized as a direct or collateral consequence.
A. The Direct-Collateral Dichotomy Is Appropriately Applied
to the Consequence of Sex Offender Registration
¶16 As noted above, Padilla did not eliminate the direct-
collateral distinction but merely carved out a special exception for
advising defendants about the risk of deportation associated with a
guilty plea. Padilla noted that this exception was premised on the
“unique nature” of deportation. 559 U.S. at 365.
¶17 In Padilla, the Court explained that deportation’s unique
nature arose from the changes in immigration law that had
“dramatically raised the stakes of a noncitizen’s criminal conviction”
and transformed deportation into “an integral part—indeed,
sometimes the most important part—of the [criminal] penalty,” akin
to “banishment or exile.” Id. at 364, 373 (footnote omitted) (internal
quotation marks omitted). Removal from the country, the Court
noted, is “nearly an automatic result for a broad class of noncitizen
offenders.” Id. at 366. The Court also recognized that deportation is
a particularly “severe ‘penalty’” and that it is difficult to separate it
from the defendant’s conviction. Id. at 365–66. Thus, the Court
determined that deportation is uniquely ill-suited for the direct-
collateral divide because (1) it results automatically from the entry
of the plea, and (2) it is a particularly severe penalty. Id. at 366.
Accordingly, any rationale for extending Padilla’s reasoning to other
contexts, such as registration as a sex offender, must be rooted in
both of these justifications.
¶18 Mr. Trotter cites several state court decisions to support his
claim that Padilla’s rationale should be extended to the consequence
1
(...continued)
excluded from the scope of the Sixth Amendment’s protections. We
accordingly need not reach the Strickland analysis where defense
counsel’s alleged deficiency was the failure to inform the defendant
of a guilty plea’s collateral consequences.
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STATE v. TROTTER
Opinion of the Court
of sex offender registration. For example, the Georgia court of
appeals in Taylor v. State ruled to extend Padilla’s reasoning to a
registration requirement by relying on three primary justifications:
the prevailing professional norms, the automatic nature of the
requirement, and the severity of the requirement. 698 S.E.2d 384,
388–89 (Ga. Ct. App. 2010). We address each in turn.
¶19 First, the Taylor court cited the ABA Standards for Criminal
Justice, which instruct defense counsel to advise their clients of the
registration requirement before entering a guilty plea. Id. at 388. We
certainly agree that best practices suggest that defense counsel
should inform a defendant that his guilty plea carries with it the
requirement to register as a sex offender, but best practices often
extend beyond the minimum level of professional competence
mandated by the Constitution. See, e.g., Whiting v. United States, 231
F.3d 70, 76 (1st Cir. 2000) (stating that “there is daylight between
desirable policy and the bare minimum required by the
Constitution”). We conclude that is the case here.
¶20 The second two considerations raised by the Taylor
court—the automatic nature and severity of the registration
consequence—are relevant to our determination. First, Taylor noted
that, just like deportation, Georgia’s registration requirement was an
automatic consequence of the crime to which Mr. Taylor pled guilty.
698 S.E.2d at 388. Similarly, Utah’s registration requirement is
automatically triggered if a person is convicted of certain crimes. See
UTAH CODE §§ 77-41-106, 105(3)(a) (2013). But the automatic nature
of the registration requirement cannot alone render the consequence
identical to deportation; otherwise, other civil deprivations such as
losing one’s right to vote or carry a weapon would suffice to remove
the consequence from the direct versus collateral dichotomy, which
they do not. See, e.g., Spencer v. Kemna, 523 U.S. 1, 8 (1998) (discussing
a number of civil deprivations as a collateral consequence); Kipp v.
State, 704 A.2d 839, 841–42 (Del. 1998) (discussing prohibition of
deadly weapon possession); Saadiq v. State, 387 N.W.2d 315, 325
(Iowa 1986) (collecting cases on distinction between direct and
collateral consequences). Thus, if the registration requirement is to
be treated like deportation, it must be based not only on its
automatic nature, but also on its severity.
¶21 We evaluated the severity of deportation and its impact on
defendants when we decided State v. Rojas-Martinez, 2005 UT 86, 125
P.3d 930, overruled by Padilla, 559 U.S. 356. We recognized that
deportation is an especially severe consequence because it is
essentially the “‘equivalent of banishment or exile.’” Id. ¶ 19
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(quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)). We also noted
that deportation severely restricts the defendant’s freedom of
movement and opportunity because it “‘deprives him of the right to
stay and live and work in this great land.’” Id. (quoting Reno v. Am.
Arab Anti-Discrimination Comm., 525 U.S. 471, 497–98 (1999)). It also
interferes with familial relationships and places great strain on the
family when the separation occurs. Id. (citing Santosky v. Kramer, 455
U.S. 745, 787 (1982)).2
¶22 In addressing whether sex offender registration rises to the
same level of severity as the consequence of deportation, we begin
by acknowledging the serious social stigmas that attach to one who
must register as a sex offender. Interested parties may easily locate
by name and address any sex offender living in their neighborhood.
In many instances, the most regrettable actions in an individual’s life
are posted for the public to see. Once identified as a sex offender, the
individual may feel compelled to move away, quit a job, or stay
indoors. The offender’s family members and friends may also be
ostracized, and a number of other social pressures may complicate
and burden the offender’s life upon registration. We do not mean to
diminish in any way the real and significant civil and social burdens
a sex offender must face as a result of registration. Nevertheless, we
conclude that the statutory restrictions imposed on sex
offenders—and the resulting social consequences—are not akin to
the restrictions and consequences faced by deportees.
¶23 Under Utah Code section 77-27-21.7(2), a registered offender
may not “be in any protected area on foot or in or on any vehicle.”
Protected areas under the statute include day care and preschool
facilities, public swimming pools, primary and secondary schools,
public parks, public playgrounds, and other areas designed for
children to engage in recreational activity.3 A protected area may
2
The Supreme Court noted similar reasons when creating the
deportation exception in Padilla, including the “steady expansion of
deportable offenses” and the impact on an individual’s ability to
remain in the country. Padilla, 559 U.S. at 363.
3
“‘Protected area’ means the premises occupied by: (i) any
licensed day care or preschool facility; (ii) a swimming pool that is
open to the public; (iii) a public or private primary or secondary
school that is not on the grounds of a correctional facility; (iv) a
community park that is open to the public; and (v) a playground that
is open to the public, including those areas designed to provide
(continued...)
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also include any area within one thousand feet of the victim’s
residence but only if the offender is on probation or parole and the
victim affirmatively requests the buffer zone.4 The victim’s residence
is also categorically excluded from the definition of “protected area”
if the victim is a member of the offender’s immediate family and the
terms of the offender’s probation or parole so allow.5
¶24 Furthermore, the statute affords additional exceptions to the
definition of “protected area” that make its impact on the defendant
far less severe than the consequence of deportation. For example, a
sex offender may enter a protected area during times when the
offender must be present to fulfill “necessary parental
responsibilities.”6 Additionally, when the protected area is a school
building, the offender may still enter when the building is being
3
(...continued)
children space, recreational equipment, or other amenities intended
to allow children to engage in physical activity.” UTAH CODE § 77-27-
21.7(1)(a).
4
“‘[P]rotected area’ also includes any area that is 1,000 feet or less
from the residence of a victim of the sex offender’s offense . . . if:
(A) the sex offender is on probation or parole for an offense . . . ;
(B) the victim or the victim’s parent or guardian has advised the
Department of Corrections that the victim desires that the sex
offender be restricted from the area . . . and authorizes the
Department of Corrections to advise the sex offender of the area
where the victim resides for the purposes of this Subsection . . . ; and
(C) the Department of Corrections has notified the sex offender in
writing that the sex offender is prohibited from being in the
protected area . . . and has also provided a description of the location
of the protected area to the sex offender.” Id. § 77-27-21.7(1)(b)(i).
5
“‘Protected area’ . . . does not apply to the residence and area
surrounding the residence of the victim if: (A) the victim is a
member of the immediate family of the sex offender; and (B) the
terms of the sex offender’s agreement of probation or parole allow
the sex offender to reside in the same residence as the victim. Id.
§ 77-27-21.7(1)(b)(ii).
6
“It is a class A misdemeanor for any sex offender to be in any
protected area on foot or in or on any vehicle, including vehicles that
are not motorized, except for: (a) those specific periods of time when
the sex offender must be present within a protected area in order to
carry out necessary parental responsibilities . . . .” Id.
§ 77-27-21.7(2)(a).
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used for a “public activity” that is not a school-related function
involving individuals under the age of eighteen.7 Or, if the protected
area is a licensed day care or preschool facility, the offender may
enter when the building is open to the public for activities that are
operated separately from the day care or preschool.8 Aside from the
ban on entering protected areas, it appears that the only other
unique legal deprivation a registered sex offender suffers is the
choice to change his or her name. See UTAH CODE § 77-41-105(9)(a)
(2013).
¶25 Taken as a whole, these prohibitions, while onerous, do not
rise to the same level of severity as deportation from the country.
While deportation is similar to banishment or exile, a sex offender
retains a good deal of freedom to conduct himself as he or she
chooses. The offender’s movement and activity is relatively
uninhibited by registration, with the exception of certain protected
areas under narrowly tailored circumstances. The offender may go
to work, to school, to the gym, to the grocery store, to the movie
theater, to the post office, and to a restaurant without violating any
of the conditions set out by the registry laws. For the most part, the
registered offender maintains the choice to live and work where he
or she chooses.
¶26 Moreover, rather than permanently interfering with familial
relationships in the way that deportation does, the registry allows
offenders to continue to live with their families despite registration.
This is true even if the victim is a member of the offender’s
immediate family, absent some other condition of probation or
parole. And even if the offender’s parole does not allow contact with
the victim and requires the offender to live elsewhere, nothing in the
statute itself prohibits visits and interactions with other family
members. This is, again, a very different scenario from that of the
defendant who is deported and is thereby permanently deprived of
7
“[W]hen the protected area is a school building . . . (ii) being
opened for or being used for a public activity; and (iii) not being
used for any school-related function that involves persons younger
than 18 years of age . . . .” Id. § 77-27-21.7(2)(b).
8
“[W]hen the protected area is a licensed day care or preschool
facility . . . located within a building that is open to the public for
purposes, services, or functions that are operated separately from the
day care or preschool facility located in the building, except that the
sex offender may not be in any part of the building occupied by the
day care or preschool facility.” Id. § 77-27-21.7(c).
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face-to-face contact with family in the United States. Moreover, the
statute allows an offender to enter even protected areas on a very
limited basis to carry out necessary parental responsibilities. Instead
of removing the offender from his family unit as deportation would
do, registration in Utah still allows the offender to function as a
parent. On balance, the restrictions imposed by Utah’s sex offender
registration requirement seem to us significantly removed from
banishment or exile.
¶27 Nevertheless, Mr. Trotter argues that the registration
requirement “significantly impacts the defendant’s unfettered liberty
for years into the future.” Although Mr. Trotter does not elaborate
on that statement, we recognize that one way the defendant’s liberty
may be impacted is through the registration’s public reporting
requirements. See id. § 77-41-105 (2011). Under these requirements,
a sex offender is obligated to deliver certain personal information,
including addresses, fingerprints, a DNA specimen, internet
identifiers, and professional licenses to the appropriate department
or entity. See id. § 77-41-105(8). The Department of Corrections then
publishes some, but not all, of this information on a website
specifically maintained for this purpose. See id. § 77-41-110 (2012).
Yet all of the information displayed on this website is information
that is independently classified as public information, meaning
members of the public can obtain the information by making a
request pursuant to Utah Code section 63G-2-201(1). See id.
§ 77-41-108; see also Femedeer v. Haun, 227 F.3d 1244, 1250 (10th Cir.
2000) (stating that “public accessibility of information concerning a
sex offender’s conviction, including accessibility of that information
through the Internet, is not punishment”). Although making this
information public carries with it additional real and automatic
social burdens, the severity of these burdens does not rise to same
level as deportation. We therefore decline to extend Padilla to
remove advice regarding the consequence of sex offender
registration from the generally applicable direct-collateral
dichotomy.
B. The Sex Offender Registration Requirement Is a
Collateral Consequence of a Defendant’s Guilty Plea
¶28 Because we hold that Padilla’s reasoning does not extend to
the registration requirement, we must now determine whether
registering as a sex offender is properly categorized as a direct
consequence or a collateral consequence of a defendant’s guilty plea.
A direct consequence has an immediate and automatic effect on the
range of a defendant’s punishments. State v. Smit, 2004 UT App 222,
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¶ 29, 95 P.3d 1203. “Examples of direct consequences include the
forfeiture of trial rights, the imposition of a mandatory term of
imprisonment that results from an unconditional guilty plea, and the
imposition of mandatory postrelease supervision,” People v. Peque,
3 N.E.3d 617, 628 (N.Y. 2013) (citations omitted), including
probation and the eligibility for parole, see Smit, 2004 UT App 222,
¶ 29; United States v. Krejcarek, 453 F.3d 1290, 1297 n.7 (10th Cir.
2006).
¶29 Conversely, a consequence is collateral if it is unrelated to
the length and nature of the sentence imposed on the basis of the
plea. United States v. Hurlich, 293 F.3d 1223, 1231 (10th Cir. 2002);
State v. McFadden, 884 P.2d 1303, 1304 (Utah Ct. App. 1994). It is a
consequence that is based more on the individual’s personal
circumstances, see Peque, 3 N.E.3d at 628, and is “beyond the control
and responsibility of the district court in which [the] conviction was
entered.” United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000),
overruled on other grounds by Padilla, 559 U.S. 356. “Illustrations of
collateral consequences are loss of the right to vote or travel abroad,
loss of civil service employment, loss of driver’s license, loss of the
right to possess firearms or an undesirable discharge from the armed
services.” People v. Ford, 657 N.E.2d 265, 267–68 (N.Y. 1995) (citations
omitted). Consequences that can be “foreseen because of the
automatic operation of statutes” may also count as collateral. Aldus
v. State, 748 A.2d 463, 469 n.6 (Me. 2000).
¶30 We hold that the registration requirement is properly
characterized as a collateral consequence because, although
automatic in effect, it is unrelated to the range of the defendant’s
punishments. Unlike parole, probation, or the length of
imprisonment, the requirement to register as a sex offender is
beyond the control of the trial court. The judge has no discretion
whatsoever in determining whether the defendant will have to
comply with registration statutes; instead, it is a legal obligation,
predetermined by the legislature, placed on those convicted of
particular crimes and is an automatic operation of statute. Similar to
the consequence of losing one’s driver’s license or the right to
possess a firearm, the registration requirement is intended to act not
as a criminal punishment but as a prophylactic civil remedy. See, e.g.,
Smith v. Doe, 538 U.S. 84, 95–96 (2003) (holding that Alaska’s
registration requirement was a civil remedy and nonpunitive);
United States v. Carel, 668 F.3d 1211, 1213 (10th Cir. 2011)
(determining that the registration requirement of the federal sex
offender registry law is a “civil component”); Femedeer, 227 F.3d at
13
 STATE v. TROTTER
Opinion of the Court
1249–53 (evaluating aspects of Utah’s registration laws and
determining that they constitute a “civil remedy”); State v. Holt, 2010
UT App 138, ¶ 12 n.7, 233 P.3d 828, overruled on other grounds by State
v. Johnson, 2012 UT 68, 290 P.3d 21 (noting that “[r]egistration as a
sex offender is not considered a criminal penalty, but rather a civil
penalty” (internal quotation marks omitted)).
¶31 For instance, in Femedeer the Tenth Circuit evaluated the
nature of Utah’s sex offender registry Internet notification system,
which derives from the existing registration database. It found that
the Utah Legislature’s intent in creating the system “was clearly to
establish a civil remedy.” 227 F.3d at 1249. The court observed that
legislative intent may be ascertained from “the simple fact that the
legislature placed the statute in the civil code as opposed to the
criminal code.” Id. (internal quotation marks omitted). Furthermore,
the court determined that the system promoted civil goals including
“deterrence, avoidance and investigation.” Id. at 1252. It reasoned
that the negative consequences imposed on sex offenders from the
notification system—and impliedly from the underlying registration
requirement—imposed “only a civil burden upon sex offenders.” Id.
at 1253.
¶32 The reasons identified by the Femedeer court in the context
of the notification system are persuasive to us in determining that
the registration requirement itself is a civil remedy. The requirement
appears in the civil code rather than the criminal code, and the
information is available only to those who affirmatively choose to
seek it out. Moreover, the civil purposes advanced by the
notification system—deterrence and avoidance—also underpin
Utah’s registration requirement. Indeed, the sex offender registry
provides helpful information to parents in protecting their children
from past offenders. It also offers an additional tool for making
informed decisions regarding child care and victimization
prevention.
¶33 We conclude that the registration requirement is a civil
remedy and is properly categorized as a collateral consequence
rather than a direct consequence of a defendant’s guilty plea because
it is unrelated to the length or nature of the sentence. See McFadden,
884 P.2d at 1304; see also Peque, 3 N.E.3d at 628 (identifying sex
offender registration as a collateral consequence). Because we
determine that the registration requirement is a collateral
consequence, Mr. Trotter’s trial counsel was not ineffective for
failing to advise him of it prior to entering his guilty plea. See
Chaidez, __ U.S. at __, 133 S. Ct. at 1109 (noting the strong judicial
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Opinion of the Court
consensus that “counsel’s failure to inform a defendant of the
collateral consequences of a guilty plea is never a violation of the
Sixth Amendment” (internal quotation marks omitted)). We
accordingly affirm the trial court’s denial of Mr. Trotter’s motion to
withdraw his guilty plea on Sixth Amendment grounds. We take this
opportunity to reemphasize, however, that attorneys follow best
practices by advising their clients of the sex offender registration
requirement when it is a condition of the client’s guilty plea, even if
doing so goes beyond the minimum standard mandated by the
Constitution.
II. A DEFENDANT’S GUILTY PLEA IS VOLUNTARY AND
KNOWING NOTWITHSTANDING A TRIAL COURT’S
FAILURE TO INFORM THE DEFENDANT OF THE
REQUIREMENT TO REGISTER AS A SEX OFFENDER
¶34 Utah’s Plea Withdrawal Statute states that “[a] plea of
guilty . . . may be withdrawn only upon . . . a showing that it was not
knowingly and voluntarily made.” UTAH CODE § 77-13-6(2)(a). The
United States Supreme Court has defined a “voluntary” plea as one
made by a defendant who is “fully aware of the direct
consequences” of his guilty plea. Brady v. United States, 397 U.S. 742,
755 (1970) (internal quotation marks omitted). Federal law almost
universally holds that the due process guarantee entitles a defendant
“to be informed of the direct, but not collateral, consequences of his
plea.” Warren v. Richland Cnty. Circuit Court, 223 F.3d 454, 457 (7th
Cir. 2000); see also United States v. Suter, 755 F.2d 523, 525 (7th Cir.
1985) (“A defendant is entitled to be informed of the direct, not all
the collateral, consequences of his plea.”); George v. Black, 732 F.2d
108, 110 (8th Cir. 1984) (“[T]he accused need only be informed of the
‘direct consequences’ of the guilty plea. It is not necessary to attempt
to inform the defendant of all the indirect or collateral
consequences.” (citation omitted)); Michel v. United States, 507 F.2d
461, 465 (2d Cir. 1974) (noting the “long-standing rule . . . that the
trial judge when accepting a plea of guilty is not bound to inquire
whether a defendant is aware of the collateral effects of his plea”).
Although there is no Utah case law interpreting the Plea Withdrawal
Statute to incorporate this well-ingrained principle of federal law, it
is reflected in rule 11 of the Utah Rules of Criminal Procedure, which
states that “a court is not required to inquire into or advise
concerning any collateral consequences of a plea.” UTAH R. CRIM . P.
11(e)(8). Today we hold that like the federal Due Process Clause, the
Plea Withdrawal Statute’s “knowing and voluntary” standard
incorporates the principle that a guilty plea may be voluntarily given
even if the defendant is uninformed of the plea’s collateral
consequences.
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STATE v. TROTTER
Opinion of the Court
¶35 As a result, our prior conclusion that the registration
requirement is a collateral consequence compels us to likewise
conclude that the trial court had no responsibility under either the
federal Due Process Clause or the Utah Plea Withdrawal Statue to
inform Mr. Trotter that by pleading guilty he would be required to
register on the state’s sex offender registry. Since the district court is
not required to advise a defendant of a plea’s collateral
consequences, the trial court’s colloquy in Mr. Trotter’s case was
constitutionally sufficient to verify that Mr. Trotter pled guilty
voluntarily and knowingly.
CONCLUSION
¶36 We hold that the trial court did not abuse its discretion
when it denied Mr. Trotter’s motion to withdraw his 2009 guilty plea
because the plea was entered voluntarily and knowingly. Further,
we hold that the requirement to register as a sex offender as result
of a defendant’s guilty plea is a collateral consequence of that plea,
which imposes no constitutional obligation on the trial court or on
defense counsel to inform a defendant of that risk. For these reasons,
we affirm the lower court’s judgment.
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