State v. Visser

WILKINS, Presiding Judge

(concurring):

¶ 21 While I concur in the opinion of the court, I do so with a sense that great caution need be applied to guard against any over-broad reading of our holding in this case. The defendant argues that our holding in State v. Mills, 898 P.2d 819 (Utah Ct.App. 1995), somehow requires the trial court, in conducting the plea colloquy, to assure the defendant has been advised not only of the elements of the charge to which the plea is to be entered, but also elements of other charges that may have been part of the action to that point. This is incorrect. Mills noted that the trial court had not even addressed the underlying elements of riot, much less the additional elements of attempted riot, when accepting a plea from the defendant. See id. at 824. Our point in Mills was simply that the defendant must understand all of the elements of attempted riot, the offense to which the defendant was entering a plea, to be in strict compliance with Rule 11(e). The rule does not require more, nor do we.

¶ 22 Of perhaps greater concern to me is the length to which we are required to go here to assure the defendant has had his rights properly protected. The trial court, in an honest and understandable effort to use language appropriate for the age and sophistication of the defendant, chose phrases that were somewhat more simple and direct regarding the nature of the rights implicated by the guilty plea. Rule 11 provides for exactly just such wisdom and discretion on the part of the tidal judge. Who better than the trial judge to look the defendant in the eye and conduct the conversation necessary for the trial court to be convinced that the defendant understands his rights? A Rule 11 colloquy is most properly considered an active investigation of limited facts by the trial judge, those specified in the rule itself. It is not to be a rote and meaningless drill of language similar to how television and films have come to portray the giving of Miranda rights.

¶ 23 In this case, the trial court used what in my opinion was perfectly adequate language to explain to this defendant, under these circumstances, those legal concepts encompassed by the provisions of Rule 11(e). In fact, had the record reflected the trial court’s belief that he had covered each of these rights in a manner sufficient for the defendant to understand them, I would have been willing to affirm the trial court’s denial of the motion to withdraw the guilty plea on that basis. However, as the trial judge candidly admitted both from the bench in ruling on the motion to withdraw the plea, and in his later written ruling on objections arising from that hearing, the defendant was simply not informed of his rights to a speedy public trial before an impartial jury. The expressed reason for this omission by the trial court was to avoid engendering confusion in the defendant about rights greater than those he had already enjoyed with the beginning of the trial in which then engaged.

¶ 24 This concern probably could have been addressed in alternative ways, to include simply telling the defendant that he had a right to a speedy public trial before an impartial jury, and that such a trial was then in progress.

¶ 25 Unfortunately, whether the defendant understood these additional rights at the time the plea was entered, or not, becomes irrelevant to the legal result. A trial court must strictly comply with Rule 11. Under Rule 11(e)(3) the court may not accept a guilty plea until the court has found that the defendant knows of the right to a speedy public trial before an impartial jury. The court must make some inquiry on the point with the defendant prior to accepting the plea, and must reach the appropriate finding on the issue in order to proceed with the plea.

¶ 26 With the best of intentions, the trial court here chose not to inquire on the point with this defendant. That failure is fatal to the plea colloquy.

¶ 27 Our system of laws lays at the feet of the taxpayers, and on the shoulders of a young woman in this case who has been required twice before to tell the details of what she believes to have been a rape, the costs of protecting the rights of the innocent. In this instance, the defendant will be allowed to withdraw his guilty plea. He will be retried by the taxpayers, and the victim will be asked again to testify. The defendant may be charged with other crimes allowed to go unprosecuted as a result of the plea bargain, and may be charged with and convicted of a more serious offense than that to which he has pleaded guilty previously. And he may be acquitted by an impartial jury in a speedy and public trial.

¶ 28 Once the plea is withdrawn, the defendant is presumed innocent in our system of laws. The “technicalities” by which we have today rewritten the history of this case are the same technicalities envisioned by the framers of our state and national constitutions to protect all innocent persons. Ages ago we decided as a people, when we adopted those constitutions, that if the law cannot be perfect we would rather err on the side of letting the occasional guilty person go free, rather than locking up for years the occasional innocent person.