State v. Walker

2013 UT App 198_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
FREDRICK C. WALKER,
Defendant and Appellant.
Opinion
No. 20110979‐CA
Filed August 8, 2013
Fourth District, Provo Department
The Honorable Lynn W. Davis
No. 841409351
David Paul White, Attorney for Appellant
John E. Swallow and Ryan D. Tenney, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES JAMES Z. DAVIS and J. FREDERIC VOROS JR.
concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Fredrick C. Walker appeals from the trial court’s
denial of his motion to withdraw his guilty plea to one count of
sexual abuse of a child. We affirm.
BACKGROUND
¶2 In September 1984, Defendant’s stepmother reported that
then twenty‐one‐year‐old Defendant had molested her three sons.
At the time, the victims were twelve, ten, and four years of age. On
State v. Walker
September 20, 1984, the State charged Defendant with one count of
sodomy on a child, a first degree felony, see Utah Code Ann. § 76‐5‐
403.1(1), (2) (Allen Smith Supp. 1983), and two counts of sexual
abuse of a child, both second degree felonies, see id. § 76‐5‐404.1(1),
(2) (Supp. 1984). That same day, Defendant was brought before the
trial court for his initial appearance. The court’s minute entry from
that hearing states that Defendant was “advised of [his] rights” and
counsel was appointed to him.
¶3 One week later, Defendant appeared in court with his
appointed counsel. After discussion with the State and the trial
court, Defendant agreed to take a polygraph test. The parties
agreed that if Defendant passed the test, the State would dismiss
the charges, but if Defendant failed the test, the results would be
admitted as evidence at Defendant’s trial. Defendant failed the
polygraph test. A preliminary hearing was held on October 18,
1984. At the close of the preliminary hearing, the magistrate bound
Defendant over for trial, and Defendant hired private counsel
shortly thereafter. At his subsequent arraignment, Defendant
pleaded not guilty to all charges and the court scheduled the case
for trial. Prior to trial, Defendant underwent a psychiatric
evaluation to determine his competency to stand trial. The
competency evaluator determined that Defendant “ha[d] an
understanding of the[] charges filed against him . . . , of the
processes of the court and sufficient factual information
surrounding the charges to aid in his own defense in a court of
law.”
¶4 On the morning of the February 28, 1985 trial, Defendant
informed the trial court that he had accepted a plea offer from the
State. Defendant agreed to plead guilty to one count of sexual
abuse of a child in exchange for the State’s dismissal of the other
charges. No transcript exists for this proceeding; however, the
record does contain the trial court’s minute entry of the hearing.
The court’s minutes indicate that Defendant was advised of his
rights and the consequences of entering into a guilty plea.
20110979‐CA 2 2013 UT App 198State v. Walker
¶5 Following this change of plea hearing, Adult Probation and
Parole prepared a presentence investigation report (PSI). The
Diagnostic Staff of the Utah Department of Corrections also
prepared a ninety‐day diagnostic evaluation report (Diagnostic
Report). On June 21, 1985, the trial court sentenced Defendant to
one to fifteen years in prison.
¶6 In late 1986, Defendant filed a habeas corpus petition, which
the trial court denied. No records from that action remain, but
Defendant has provided a copy of his notice of appeal and a pro se
docketing statement stemming from the denial of that petition.
¶7 Well after his release from prison, Defendant filed a motion
on August 10, 2010, to withdraw his guilty plea—more than
twenty‐five years after he originally entered into a plea agreement
with the State. In support of his motion to withdraw his plea,
Defendant produced affidavits from each of the three victims
wherein they recant their original accusations of abuse. The State
responded by contesting the trial court’s jurisdiction based on the
timing provisions contained in the plea withdrawal statute. The
court ruled that it had jurisdiction over Defendant’s motion and
requested supplemental briefing on the merits of Defendant’s
claim. In his supplemental brief, Defendant requested an
evidentiary hearing. After considering the victims’ recantations
and all other available records, the court denied Defendant’s
motion to withdraw his guilty plea and his request for an
evidentiary hearing. Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Defendant challenges the denial of his motion to withdraw
his guilty plea on three grounds: (1) factual innocence, based
primarily on the victims’ recantations; (2) violations of Utah Code
section 77‐35‐11(e) (now rule 11(e) of the Utah Rules of Criminal
Procedure), see Utah Code Ann. § 77‐35‐11(e) (Allen Smith Supp.
1985) (repealed 1989) (providing that a court, in accepting a guilty
20110979‐CA 3 2013 UT App 198State v. Walker
plea, must ensure that a defendant’s guilty plea is entered
knowingly and voluntarily); and (3) ineffective assistance of
counsel and undue pressure. “[W]e review [t]he denial of a motion
to withdraw a guilty plea . . . under an abuse of discretion
standard, incorporating a clearly erroneous standard for findings
of fact and reviewing questions of law for correctness.” State v.
Person, 2006 UT App 288, ¶ 8, 140 P.3d 584 (omission and second
alteration in original) (citation and internal quotation marks
omitted).
¶9 In the alternative, Defendant argues that the trial court
should have granted his request for an evidentiary hearing so that
he could have further developed the facts supporting his motion to
withdraw his guilty plea. We review a trial court’s decision to rule
on a motion to withdraw a guilty plea without first holding an
evidentiary hearing for an abuse of discretion. Id.¶10 Before reaching the merits of Defendant’s claims on appeal,
we must resolve three issues raised by the State. First, the State
renews its argument that the trial court lacked jurisdiction to hear
the motion to withdraw Defendant’s guilty plea. “This presents a
question of law, which we review for correctness, granting no
deference to the district court.” State v. Nicholls, 2006 UT 76, ¶ 3, 148
P.3d 990.
¶11 Second, assuming the trial court had jurisdiction to review
Defendant’s motion, the State argues that res judicata nevertheless
bars the court’s review of Defendant’s motion to withdraw. Even
though the State raised this argument before the trial court, the
court did not rule on the issue because it resolved the case on other
grounds. “Whether a claim is barred by res judicata is a question
of law that we review for correctness.” Gillmor v. Family Link, LLC,
2012 UT 38, ¶ 9, 284 P.3d 622.
¶12 Finally, we must determine which legal standard applies to
Defendant’s motion to withdraw his guilty plea. Either we will
apply the withdrawal of plea statute in effect when Defendant
20110979‐CA 4 2013 UT App 198State v. Walker
entered his plea in 1985, which requires a showing of good cause,
see Utah Code Ann. § 77‐13‐6 (Allen Smith 1982),1 or, as the State
urges, we will apply the law in effect when Defendant filed his
motion in 2010—now the current law—requiring analysis of
whether the guilty plea was entered knowingly and voluntarily, see
id. § 77‐13‐6(2)(a) (LexisNexis 2012).2 “Determining which version
of [a] statute applie[s] is a matter of statutory interpretation, which
presents a question[] of law which we review for correctness . . . .”
In re T.M., 2003 UT App 191, ¶ 9, 73 P.3d 959 (second and third
alterations in original) (citation and internal quotation marks
omitted).
ANALYSIS
I. Preliminary Issues Raised by the State
A. Jurisdiction
¶13 The State argues that the trial court lacked jurisdiction to
hear Defendant’s motion to withdraw his guilty plea because it was
untimely. The State maintains that “when Defendant waited to file
his motion to withdraw, he became subject to the changing
jurisdictional requirements that the [Utah] Legislature imposed on
those motions—including the statute of limitations.” Because time
limitations on causes of action become operative when they are
1. The 1985 plea withdrawal statute reads, in relevant part, “A plea
of guilty or no contest may be withdrawn only upon good cause
shown and with leave of court.” Utah Code Ann. § 77‐13‐6 (Allen
Smith 1982).
2. The current law reads, in relevant part, “A plea of guilty or no
contest may be withdrawn only upon leave of the court and a
showing that it was not knowingly and voluntarily made.” Utah
Code Ann. § 77‐13‐6(2)(a) (LexisNexis 2012).
20110979‐CA 5 2013 UT App 198State v. Walker
enacted, the State argues that Defendant’s motion is governed by
the 1989 amendment to the plea withdrawal statute. That
amendment requires motions to withdraw a guilty plea to be filed
within thirty days following entry of the guilty plea. See Utah Code
Ann. § 77‐13‐6(2)(b) (Michie Supp. 1989) (“A request to withdraw
a plea of guilty or no contest is made by motion, and shall be made
within thirty days after the entry of the plea.”). Prior to the 1989
amendment, no such time restriction existed. See id. (Allen Smith
1982). The State asserts that Defendant was put on constructive
notice when the statute changed in 1989, and therefore, Defendant
had thirty days from the moment the new time limitation became
effective to file his motion to withdraw. According to the State,
because Defendant failed to file his motion within the thirty‐day
limit, no court had jurisdiction to hear his motion to withdraw.
¶14 The State raised this jurisdictional argument below. The trial
court concluded that, consistent with the supreme court’s decision
in State v. Abeyta, 852 P.2d 993 (Utah 1993) (per curiam), the 1989
amendment did not apply to Defendant’s motion. Accordingly, the
court ruled that it had jurisdiction to hear Defendant’s motion.
¶15 We agree that Abeyta is dispositive here. As in this appeal,
Abeyta involved a defendant who pleaded guilty before the 1989
amendment took effect and moved to withdraw his guilty plea
more than thirty days after the 1989 amendment took effect. See id.
at 995. In determining whether jurisdiction was proper, the
supreme court observed that the 1989 amendment could not be
retroactively applied to the defendant’s guilty plea because the plea
withdrawal statute provided no express statement allowing for
retroactive application and because the 1989 amendment was a
substantive, not procedural, change in the law. See id. Accordingly,
the supreme court held that the trial court erred in barring the
defendant’s motion to withdraw his guilty plea, because the
amendment did not apply. See id. Likewise, we conclude that
Defendant’s petition is not barred by the 1989 amendment.
20110979‐CA 6 2013 UT App 198State v. Walker
¶16 The State attempts to distinguish Abeyta by asserting that it
is not asking for a retroactive application of the plea withdrawal
statute. Rather, the State cites State v. Clark, 2011 UT 23, 251 P.3d
829, “for the simple[] proposition that [courts] apply the law as it
exists at the time of the event regulated by the law in question,” id.
¶ 13. In this case, the State argues that the “event regulated by the
law in question” is Defendant’s 2010 motion to withdraw his guilty
plea, as opposed to Defendant’s act of entering his guilty plea in
1985. Under this reasoning, Defendant would be subject to the
thirty‐day time limit. However, our determination of the “event
regulated by the law in question” turns on whether the plea
withdrawal statute itself—not just the 1989 amendment—affects a
party’s substantive or procedural rights. See id. ¶ 14. Because we
hold that the plea withdrawal statute is substantive, see infra
¶¶ 23–25, the law that governs Defendant’s motion is the law in
effect when he entered into his guilty plea in 1985. Consequently,
we agree with the trial court that the thirty‐day time limit does not
apply under these circumstances. Regardless of how the State
frames the issue, imposing the thirty‐day time limit on Defendant’s
motion to withdraw would be an impermissible retroactive
application of the 1989 amendment, based on the holding in Abeyta
and the reasoning in Clark. Therefore, we conclude that the court
properly exercised jurisdiction over Defendant’s motion.3
3. We acknowledge that, as the State points out, other remedies
exist for a criminal defendant to challenge a plea after expiration of
the thirty‐day time limit. Such measures include post‐conviction
remedies such as habeas corpus, which was utilized by Defendant.
See State v. Merrill, 2005 UT 34, ¶ 25, 114 P.3d 585 (“[U]nlike the
writ of habeas corpus, a motion to withdraw a guilty plea is not a
last resort. This fact is made clear within the text of the current
version of Utah Code section 77‐13‐6. Immediately following
section 77‐13‐6(2)(b), which imposes the thirty‐day filing limit,
section 77‐13‐6(2)(c) preserves the right of a defendant to pursue
challenges to the lawfulness of his guilty plea under both the Post‐
(continued...)
20110979‐CA 7 2013 UT App 198State v. Walker
B. Res Judicata and Waiver
¶17 The State also raised a res judicata challenge before the trial
court, but the court declined to rule on this argument because it
resolved the case on other grounds. We reach this issue because the
State renews its challenge on appeal. Res judicata has two
branches: claim preclusion and issue preclusion. Macris & Assocs.,
Inc. v. Neways, Inc., 2000 UT 93, ¶ 20, 16 P.3d 1214. Here, the State
asserts only claim preclusion. “Claim preclusion is premised on the
principle that a controversy should be adjudicated only once.”
Mack v. Utah State Dep’t of Commerce, 2009 UT 47, ¶ 29, 221 P.3d 194(citation and internal quotation marks omitted). The prior action
implicating claim preclusion in this case, the State argues, is
Defendant’s 1986 petition for habeas corpus.
¶18 Claim preclusion has three requirements: (1) “both cases
must involve the same parties or their privies”; (2) “the claim that
is alleged to be barred must have been presented in the first suit or
must be one that could and should have been raised in the first
action”; and (3) “the first suit must have resulted in a final
judgment on the merits.” Macris, 2000 UT 93, ¶ 20 (citation and
internal quotation marks omitted). There is no dispute that the first
element is met because Defendant and the State are the parties in
each action. As to the second element, the only surviving document
from the habeas corpus action is Defendant’s pro se docketing
statement taken from the appeal of the trial court’s denial of his
habeas petition. A finding of claim preclusion necessarily involves
a close analysis of the prior action’s issues and ruling. Without
more reliable and accurate documentation, such as a copy of the
actual habeas petition, a transcript of the hearing, or the judge’s
3. (...continued)
Conviction Relief Act (‘PCRA’) and Utah Rule of Civil Procedure
65C, provisions that embody the elements of the traditional writ of
habeas corpus.” (citing Utah Code Ann. § 77‐13‐6(2)(c) (LexisNexis
Supp. 2004) (current version at id. (2012)))).
20110979‐CA 8 2013 UT App 198State v. Walker
written ruling, the State is unable to persuade us that the claims
before us were, or could have and should have been, brought in
Defendant’s 1986 habeas petition. Thus, we determine that
Defendant’s motion is not barred by claim preclusion.
¶19 Alternatively, the State argues that Defendant’s claims
should be dismissed on account of waiver. We conclude that
Defendant did not waive his right to move for withdrawal of his
guilty plea. “Waiver is an intentional relinquishment of a known
right.” Meadow Valley Contractors, Inc. v. State Dep’t of Transp., 2011
UT 35, ¶ 45, 266 P.3d 671 (citation and internal quotation marks
omitted). It requires demonstration of three elements: “(1) an
existing right, benefit, or advantage; (2) knowledge of its existence;
and (3) an intention to relinquish the right.” Soter’s, Inc. v. Deseret
Fed. Sav. & Loan Ass’n, 857 P.2d 935, 940 (Utah 1993). “The intent to
relinquish a right must be distinct, although it may be expressed or
implied.” Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶ 61, 289 P.3d 369(citations and internal quotation marks omitted).
¶20 The State contends that Defendant waived his right to
withdraw his guilty plea because he waited twenty‐three years to
do so after his petition for habeas corpus was denied. According to
the State, this delay constituted an intentional relinquishment of
Defendant’s right to withdraw his plea. Defendant argues that his
delay is not, on its own, a sufficient indication of intent to
relinquish his right. We agree with Defendant. Although
Defendant’s delay is relevant, without additional facts
demonstrating a distinct intent to relinquish his right to withdraw
his guilty plea, we cannot conclude that waiver applies.
C. The Controlling Version of the Plea Withdrawal Statute
¶21 Next, we must determine which version of the plea
withdrawal statute applies to Defendant’s motion to withdraw his
guilty plea. Because Defendant filed his motion in 2010, the State
argues that the proper legal standard should be whether he entered
his plea knowingly and voluntarily—the standard adopted in
20110979‐CA 9 2013 UT App 198State v. Walker
2003—as opposed to the good cause standard in effect when
Defendant originally entered his plea in 1985. Compare Utah Code
Ann. § 77‐13‐6 (Allen Smith 1982) (requiring showing of good
cause), with id. § 77‐13‐6(2)(a) (LexisNexis 2012) (requiring showing
that plea was not knowing and voluntary). The trial court applied
the older good cause standard in evaluating Defendant’s motion,
though the court’s decision does not explain its reasoning for doing
so.
¶22 As a starting point, we “apply the law as it exists at the time
of the event regulated by the law in question.” State v. Clark, 2011
UT 23, ¶ 13, 251 P.3d 829; see also State v. Johnson, 2012 UT 68, ¶ 11,
290 P.3d 21. In this case, determining the “event regulated by the
law in question” turns on whether the act of seeking to withdraw
a guilty plea, as prescribed under the plea withdrawal statute,
affects a party’s substantive or procedural rights. See Clark, 2011 UT
23, ¶ 14.
The difference is in the nature of the underlying
occurrence at issue. On matters of substance the
parties’ primary rights and duties are dictated by the
law in effect at the time of their underlying primary
conduct (e.g., the conduct giving rise to a criminal
charge or civil claim). When it comes to the parties’
procedural rights and responsibilities, however, the
relevant underlying conduct is different: the relevant
occurrence for such purposes is the underlying
procedural act (e.g., filing a motion or seeking an
appeal).
Id. Our supreme court has “explained that a procedural statute
controls the mode and form of procedure for enforcing the
underlying substantive rights and merely affects the judicial
machinery available for determining substantive rights.” Johnson,
2012 UT 68, ¶ 12 (citation and internal quotation marks omitted).
“By contrast, substantive statutes enlarge, eliminate, or destroy
20110979‐CA 10 2013 UT App 198State v. Walker
vested or contractual rights.” Id. (citation and internal quotation
marks omitted).
¶23 Under this framework, we conclude that the plea
withdrawal statute is substantive. When a defendant moves to
withdraw a guilty plea, he or she is seeking to restore vested
constitutional rights that were previously waived as a consequence
of entering into a plea agreement. Such rights include the right to
a jury trial, the right against self‐incrimination, the right to confront
witnesses, and perhaps the right to appeal. Reinstatement of these
rights by withdrawing a plea of guilty does “not merely affect[] the
judicial machinery available for determining substantive rights,”
but also operates as a substantive renewal of vested rights
previously forfeited. See id. ¶ 13 (alteration in original) (citation and
internal quotation marks omitted).
¶24 The 2003 amendment to the plea withdrawal statute, which
changed the standard from good cause to knowing and voluntary,
further illustrates the statute’s substantive nature. Prior to the
amendment, a defendant could seek to withdraw a guilty plea for
any reason constituting “good cause.” Theoretically, this standard
encompasses an unlimited number of reasons for seeking to
withdraw a guilty plea. On the other hand, the current knowing
and voluntary standard is more narrow and precise than the good
cause standard. The class of defendants eligible to withdraw guilty
pleas is thus reduced under the new standard. Such a change does
not affect the “mode and form of procedure for enforcing the
underlying substantive rights” but rather eliminates substantive
rights altogether. See id. ¶¶ 12, 14.
¶25 Because the plea withdrawal statute affects substantive
rights, we conclude that the version of the statute in effect at the
time Defendant entered his guilty plea in 1985 governs his plea
withdrawal motion. Accordingly, we hold that the trial court
correctly evaluated Defendant’s motion under the good cause
20110979‐CA 11 2013 UT App 198State v. Walker
standard.4 Cf. id. ¶¶ 11–13, 19 (holding that because the reduction
of conviction statute “prescribes the class of defendants who are
eligible to seek reductions in convictions” and thereby “governs the
scope of a defendant’s vested or contractual rights in the ultimate
conviction and associated sentence,” the reduction of conviction
statute is substantive and the version of the statute in effect at the
time of a defendant’s sentencing applies to a motion to reduce a
conviction as opposed to the version in effect when the motion is
filed (internal quotation marks omitted)).
II. Merits of Defendant’s Claims on Appeal
¶26 The trial court ruled that Defendant did not present good
cause justifying the withdrawal of his guilty plea. As a result, the
court denied Defendant’s motion. Defendant appeals the court’s
ruling on the following three grounds: factual innocence,
compliance with rule 11(e) of the Utah Rules of Criminal
Procedure, and ineffective assistance of counsel. He also appeals
the court’s denial of his request for an evidentiary hearing.
A. Defendant’s Claim of Factual Innocence
¶27 Defendant argues that the trial court abused its discretion in
denying his motion to withdraw his guilty plea based on his claim
of factual innocence. Defendant asserts that his “innocence is the
ultimate good cause” for withdrawal of a guilty plea. Although
Defendant points to various facts that he claims demonstrate his
innocence, he relies primarily on certain affidavits presented to the
court in which Defendant’s victims recant their initial allegations
of abuse.5 Defendant argues that under State v. Gallegos, 738 P.2d
4. The State does not argue for a retroactive application of the plea
withdrawal statute in effect when Defendant filed his motion.
5. Defendant points to the following as further evidence of his
factual innocence: (1) Defendant pleaded not guilty to all charges
(continued...)
20110979‐CA 12 2013 UT App 198State v. Walker
1040 (Utah 1987), superseded by statute as recognized in State v. Ruiz,
2012 UT 29, 282 P.3d 998, his motion for withdrawal should have
been granted because the victims’ recantations constituted “new
and indisputably pivotal evidence.” See id. at 1041–42 (discerning
an abuse of discretion where the trial court did not permit a
defendant to withdraw a plea of guilty prior to sentencing based on
the victim’s recantation of her preliminary hearing testimony).
However, the supreme court noted in State v. Ruiz, 2012 UT 29, 282
P.3d 998, that in Gallegos there was a “complete lack of evidence
presented by the prosecution” to refute the victim’s recantation. Id.
¶ 35; see also State v. Mildenhall, 747 P.2d 422, 424 (Utah 1987)
(identifying no abuse of discretion where the trial court denied a
defendant’s motion to withdraw his guilty plea because the
victim’s “notarized, certified [recantation] letter mailed to [the]
defendant’s attorney” had “implausible timing and suspicious
content”). Here, the victims’ recent recantations are contradicted by
other evidence.
¶28 The trial court “determine[d] that the recent [recantations]
and Defendant’s claims of innocence d[id] not present good cause
5. (...continued)
at both arraignments; (2) Defendant was willing to accept defense
counsel’s and the prosecutor’s agreement that he submit to a
polygraph test in an attempt to prove his innocence; (3) Defendant
did not desire to plead guilty the day of trial despite the insistence
of defense counsel; (4) Defendant’s mother had to plead with him,
at defense counsel’s insistence, to convince Defendant to plead
guilty; (5) Defendant asserted his innocence in the psychiatric
(competency) evaluation; (6) Defendant asserted his innocence in
a letter for the PSI; and (7) Defendant continued asserting his
innocence “emphatically” and was merely judged to be “displaying
an extreme amount of denial and/or repression.” As the trial court
noted, most of what Defendant presents in these claims is based off
his own “self‐serving testimony.” Thus, we focus our inquiry on
the court’s review of the victims’ recantations in light of
contradictory evidence.
20110979‐CA 13 2013 UT App 198State v. Walker
to allow Defendant to withdraw his guilty plea, especially in the
face of the strong evidence to the contrary.” The court noted that
the victims’ recantations were “all typed and notarized statements
signed decades after the fact.” (Emphasis added.) For comparison, the
court had the transcripts of the victims’ interviews with police
“from near the time of the alleged abuse.” (Emphasis added.) The
transcripts provide mutually corroborating, testimonial evidence
regarding Defendant’s offenses. They also convey graphic details
of sexual abuse that would likely be outside the understanding of
young children absent personal experience. For example, the court
highlighted the fact that the transcripts are consistent with the four‐
year‐old victim’s hand‐drawn picture of Defendant sodomizing
him. Also, the victims had described a cycle of abuse that involved
other individuals outside the case and allegations that they
sexually abused each other according to Defendant’s instructions.
“On top of all this,” the court explained, “Defendant failed a
polygraph in which he denied these incidents.” The court also
rejected “Defendant[’s] claim[] that this was all fabricated by a
jealous step‐mother,” noting that “there are overwhelming reasons
to doubt that.” The court stated, “The graphic and disturbing
testimony of the victims at the time, in which they describe abuse
perpetrated not only by Defendant, but each other as well, is in
stark contrast to the recent [recantations] denying wholesale [that]
any kind of abuse occurred.”
¶29 The evidence before the trial court also included the
Diagnostic Report conducted by the Diagnostic Staff of the Utah
Department of Corrections. Defendant emphasizes that not only
did he voluntarily submit to the diagnostic exam, thus supporting
his claim of innocence, but the Diagnostic Report “clearly showed
‘he was not aroused by reading sexual material involving male
children.’” However, the Diagnostic Report revealed that
Defendant was “sexually aroused by erotic material involving
female children who are either forced into sexual acts or who are
willing participants in sexual acts,” though it concluded that this
arousal is likely due to “an immature sexual identification rather
than pedophilia per se.” Defendant also admitted that he had
20110979‐CA 14 2013 UT App 198State v. Walker
“harmful or shocking” impulses during the diagnostic exam, and
the evaluator concluded that Defendant was unable to delay
gratification of his impulses.
¶30 Additionally, the trial court expressed concern that if
Defendant had been allowed to withdraw his plea, the State would
be prejudiced, stating, “The State would be at a great disadvantage
since the long lapse of time has destroyed memories and other
evidence.” Cf. Mildenhall, 747 P.2d at 424 (explaining that
withdrawal of a defendant’s guilty plea would “greatly prejudice
the State” because the original victim was unavailable). Indeed, not
only are the original judge, defense counsel, and district attorney
deceased, but the transcripts of two of the victims’ preliminary
hearing testimony no longer exist. Further, the State could not
introduce the questions and answers of Defendant’s failed
polygraph test because the results of that test no longer exist. At
trial, the State could only introduce the fact that Defendant failed
the polygraph test. It is also unlikely that the State would be able
to find supporting witnesses that may have been available at the
time of the original trial. For example, in their interviews with
police, the victims spoke of other neighbor children who may have
been aware of the abuse. Also, the State points out that it could
have interviewed the victims’ teachers or youth leaders regarding
whether the victims displayed signs of abuse but that such an
opportunity is no longer available.
¶31 Defendant argues that there are other existing sources for
the same information, including the prosecutor who handled the
case, key documents from the original record, and the victims and
their mother. Defendant also notes that because he has already
served out his entire sentence, the State has no remaining interest
in his punishment. Cf. Currier v. Holden, 862 P.2d 1357, 1376 (Utah
Ct. App. 1993) (Orme, J., concurring in the result) (“‘[A]ny
increasing staleness [regarding retrial] is offset by a decreasing
state interest in punishment: The farther in time a postconviction
proceeding is from the original conviction, the more difficult will
be retrial but, equally, the greater the portion of the original
20110979‐CA 15 2013 UT App 198State v. Walker
sentence that will already have been completed’” (quoting People
v. Germany, 674 P.2d 345, 350 n.5 (Colo. 1983))), superseded by statute
as stated in Manning v. State, 2004 UT App 87, 89 P.3d 196. It
appears from the court’s ruling, however, that the court did
consider several important State interests. The court explained that
if it “were . . . to grant [Defendant’s motion], it would open the
floodgates to decades old cases and no case would become final.
That would result in legal obligations to retain evidence in all
criminal cases, essentially forever. Closure would be impossible for
all parties including victims.”
¶32 In light of the evidence contradicting the victims’
recantations, the trial court’s detailed review of these and all other
available documents, and the resulting prejudice to the State
should it wish to try the matter, we hold that the court did not
abuse its discretion in denying Defendant’s motion based on his
claim of factual innocence.
B. The Plea‐Taking Court’s Compliance with Rule 11(e)
¶33 When Defendant entered his plea in 1985, rule 11(e) of the
Utah Rules of Criminal Procedure—then codified as part of the
Utah Code—outlined the procedures that a trial court was required
to follow when accepting a guilty plea. Compare Utah Code Ann.
§ 77‐35‐11(e) (Allen Smith Supp. 1985), with Utah R. Crim. P. 11(e).6
Defendant argues that the judge who accepted and entered his
guilty plea did not comply with subsections (2), (3), and (4) of rule
11(e). See Utah Code Ann. § 77‐35‐11(e)(2)–(4).7 Specifically,
6. Utah Code section 77‐35‐11 was repealed effective July 1, 1990,
see Act of Mar. 14, 1989, ch. 187, § 15, 1989 Utah Laws 479, 486, and
replaced with rule 11 of the Utah Rules of Criminal Procedure, see
Utah R. Crim. P. 11.
7. The text of section 77‐35‐11(e)(2)–(4) reads:
(e) The court may refuse to accept a plea of guilty or
(continued...)
20110979‐CA 16 2013 UT App 198State v. Walker
Defendant argues that the judge failed to ask him what facts he was
pleading guilty to, failed to ascertain whether he understood the
relationship between the facts and the law, and failed to fully
inform him of his rights. Defendant asserts that these alleged rule
11(e) violations now present good cause for withdrawal of his
guilty plea.
¶34 Prior to the Utah Supreme Court’s decision in State v.
Gibbons, 740 P.2d 1309 (Utah 1987), a trial court was required to
substantially comply with the factors set forth in rule 11(e) before
accepting a guilty plea.8 See State v. Hoff, 814 P.2d 1119, 1123 (Utah
1991) (explaining that prior to Gibbons, “a guilty plea was valid and
could not be withdrawn if the trial court demonstrated substantial
7. (...continued)
no contest and shall not accept a plea until the court
has made the findings:
...
(2) That the plea is voluntarily made;
(3) That the defendant knows he has rights
against compulsory self‐incrimination, to a jury trial
and to confront and cross‐examine in open court the
witnesses against him, and that by entering the plea
he waives all of those rights;
(4) That the defendant understands the nature
and elements of the offense to which he is entering
the plea; that upon trial the prosecution would have
the burden of proving each of those elements beyond
a reasonable doubt; and that the plea is an admission
of all those elements . . . .
Utah Code Ann. § 77‐35‐11(e)(2)–(4) (Allen Smith Supp. 1985).
8. State v. Gibbons, 740 P.2d 1309 (Utah 1987), mandated that trial
courts strictly comply with the requirements of rule 11(e) in taking
guilty pleas. Id. at 1312–14; see also State v. Hoff, 814 P.2d 1119, 1122
(Utah 1991).
20110979‐CA 17 2013 UT App 198State v. Walker
compliance with Rule 11” and that “[i]n cases decided after Gibbons
involving guilty pleas entered before the issuance of Gibbons, [the
courts] have applied the pre‐Gibbons substantial compliance
standard”). We therefore apply the “substantial compliance”
standard to Defendant’s plea. This means that so long as “the
record as a whole affirmatively establishes that the defendant
entered his [or her] plea with full knowledge and understanding of
its consequences and of the rights he [or she] was waiving,” the
plea may not be withdrawn. State v. Blair, 868 P.2d 802, 806 (Utah
1993) (alterations in original) (citation and internal quotation marks
omitted). In other words, to permit withdrawal of a guilty plea
under the substantial compliance standard, there must have been
“a significant departure from Rule 11 requirements which [leads]
to considerable doubt as to whether a defendant’s plea was
knowing and voluntary.” Hoff, 814 P.2d at 1125. “The
determination of whether there was substantial compliance with
Rule 11 must necessarily turn on the facts of each case.” Id.
¶35 In evaluating Defendant’s rule 11(e) claims, the trial court
“determined that Defendant was proceeding knowingly, willingly,
and with a full understanding” when he entered his plea because
the surviving records “demonstrate that the [plea‐taking] court . . .
ensured Defendant knew his rights, knew the consequences of
pleading guilty, and knew the crimes he was charged with.”
¶36 Based upon our review of the record as a whole, or at least
what remains of the record, we agree with the trial court’s
conclusion. The plea‐taking court’s minutes indicate that
Defendant “was brought before the court and the court advised
him of his rights and the consequences of entering such a plea and
that the court is not bound by any plea bargaining between
[Defendant] and the State”; “[t]he Amended charge [was] read to
[D]efendant”; “[t]he court [was] of the opinion that [D]efendant
fully [understood] the consequences” of his plea “and the
amendment as indicated [was] approved”; “the court [found that]
the plea [was] entered knowingly, willingly and with a full
20110979‐CA 18 2013 UT App 198State v. Walker
understanding of his rights”; “the previous[] pleas of Not Guilty
[were] allowed to be withdrawn and the plea of Guilty entered”;
“the court again advised [Defendant] of his rights”; and perhaps
most tellingly, Defendant’s counsel “addressed the court and stated
he ha[d] discussed the matter with [Defendant] at length and
[Defendant] agree[d] this [was] the best solution to the problem.”
¶37 Other parts of the record also indicate the plea‐taking court’s
substantial compliance with rule 11(e). See State v. Maguire, 830
P.2d 216, 217 n.1 (Utah 1992) (per curiam) (observing that “it is
possible that the definition of the ‘record as a whole’ under the
substantial compliance test might be broader (including
information in the case known to the defendant but not to the judge
taking the plea—e.g., evidence at preliminary hearing, confessions,
etc.) than it is under the strict compliance test”). Defendant was
“advised of [his] rights” and the court “read [the] charges” at his
initial appearance. Defendant was present at the preliminary
hearing during which his counsel cross‐examined two of the
victims. At his arraignment, Defendant “was questioned by the
court as to his understanding of the charges filed against him” and
“[D]efendant waived the reading of the Information having
previously been given a copy.” And a competency evaluator
determined that Defendant “ha[d] an understanding of the[]
charges filed against him . . . [and] of the processes of the court and
sufficient factual information surrounding the charges to aid in his
own defense in a court of law.”
¶38 Defendant relies on his and his mother’s affidavits as
evidence of the plea‐taking court’s rule 11(e) violations. These two
documents, prepared twenty‐five years after the fact, must be
balanced against the weight of what remains of the trial record,
particularly because Defendant has failed to provide a transcript of
the plea colloquy. See generally State v. Litherland, 2000 UT 76, ¶ 11,
12 P.3d 92 (“If an appellant fails to provide an adequate record on
appeal, [appellate courts] must assume the regularity of the
proceedings below.” (citation and internal quotation marks
20110979‐CA 19 2013 UT App 198State v. Walker
omitted)). Indeed, Defendant has failed to identify any other
document in the record revealing a “significant departure” by the
plea‐taking court from the rule 11(e) requirements that would
create doubt that Defendant’s plea was anything other than
knowing and voluntary. See Hoff, 814 P.2d at 1125. Thus, we agree
with the trial court’s assessment that the plea‐taking court
substantially complied with rule 11(e) in accepting Defendant’s
plea of guilty because the surviving record “affirmatively
establishes that [D]efendant entered his . . . plea with full
knowledge and understanding of its consequences and of the rights
he . . . was waiving.” See Blair, 868 P.2d at 806. Accordingly, we
hold that the trial court did not abuse its discretion in denying
Defendant’s motion based on its rejection of Defendant’s rule 11(e)
claims.
C. Ineffective Assistance of Counsel
¶39 Defendant argues that the trial court erred by denying his
claim of ineffective assistance of counsel as a basis for withdrawing
his guilty plea. As an initial matter, we note that “if a trial court has
previously reviewed the ineffective assistance of counsel claim, an
appellate court is ‘free to make an independent determination of a
trial court’s conclusions[, though t]he factual findings of the trial
court . . . shall not be set aside on appeal unless clearly erroneous.’”
State v. Kozlov, 2012 UT App 114, ¶ 29, 276 P.3d 1207 (alteration and
omission in original) (quoting State v. Templin, 805 P.2d 182, 186
(Utah 1990)).
¶40 To succeed on a claim of ineffective assistance of counsel, a
“[d]efendant must first establish that his counsel rendered a
deficient performance in some demonstrable manner, which
performance fell below an objective standard of reasonable
professional judgment.” Id. ¶ 51 (citation and internal quotation
marks omitted). Second, a defendant must demonstrate “that
counsel’s performance prejudiced the defendant, i.e., there is a
reasonable probability . . . that except for ineffective counsel, the
20110979‐CA 20 2013 UT App 198State v. Walker
result would have been different.” Id. ¶ 52 (omission in original)
(citation and internal quotation marks omitted). “‘A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.’” Templin, 805 P.2d at 187 (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)). Failure to establish both
deficient performance and the resulting prejudice is fatal to an
ineffective assistance claim. State v. Tennyson, 850 P.2d 461, 466
(Utah Ct. App. 1993).
¶41 Defendant alleges that his counsel’s performance was
deficient because counsel failed to investigate and prepare for trial;
failed to advise Defendant of his rights prior to pleading guilty,
including his right to withdraw his guilty plea; and together with
Defendant’s mother, improperly pressured Defendant into entering
into a plea agreement. However, even if counsel’s performance was
deficient, it is readily apparent from the record that Defendant
suffered no resulting prejudice. See generally Strickland, 466 U.S. at
697 (“[A] court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.”).
¶42 To show prejudice in the context of a guilty plea, the
defendant “must convince [us] that a decision to reject the plea
bargain would have been rational under the circumstances.” Padilla
v. Kentucky, 130 S. Ct. 1473, 1485 (2010); see also United States v.
Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002) (stating that a “mere
allegation that [a defendant] would have insisted on trial . . . is
ultimately insufficient to entitle him to relief” (citation and internal
quotation marks omitted)). When making this determination,
courts “review the strength of the prosecutor’s case as the best
evidence of whether a defendant in fact would have changed his
plea and insisted on going to trial.” Miller v. Champion, 262 F.3d
1066, 1072 (10th Cir. 2001); see also State v. Hales, 2007 UT 14, ¶ 86,
152 P.3d 321 (“[I]n determining the effect of the error, we consider
20110979‐CA 21 2013 UT App 198State v. Walker
the totality of the evidence . . . .” (citation and internal quotation
marks omitted)).
¶43 At the time Defendant entered his plea, the evidence against
him was substantial. On the morning of the trial, the three young
victims were prepared to testify in graphic detail regarding
Defendant’s sexual abuse. Defendant offers us no reason to believe
that the victims’ testimonies would have varied materially from
their mutually corroborating police interviews and the preliminary
hearing testimony of the two older boys, which testimony was
credible enough to establish probable cause to bind Defendant over
for trial. Also, the State was prepared to introduce the results of
Defendant’s failed polygraph, which was, by agreement,
admissible at trial. Had Defendant been convicted on all three
counts, he could have faced life in prison. See generally Utah Code
Ann. § 76‐5‐403.1(2) (Allen Smith Supp. 1983); id. § 76‐5‐404.1(3)
(Supp. 1984).
¶44 Furthermore, Defendant had little evidence to rebut the
State’s case at trial other than his own testimony. Defendant’s
chances of acquittal would have likely hinged on the jury’s
acceptance of his theory that his jealous stepmother fabricated the
abuse and pressured the victims into making false allegations. But
as the trial court noted, “there are overwhelming reasons to doubt
that” theory. For example, the victims had described a cycle of
abuse that involved other individuals outside the case and
allegations that they sexually abused each other according to
Defendant’s instructions. A jury would likely doubt that a mother
would have coerced her own children into implicating themselves
and others in a cycle of sexual abuse just so she could get rid of an
adult stepchild whom she did not have to allow to live in her
home.
¶45 In consideration of the totality of the evidence, we determine
that Defendant has failed to demonstrate that it would have been
rational for him to insist on going to trial as opposed to accepting
20110979‐CA 22 2013 UT App 198State v. Walker
a plea deal. Thus, Defendant cannot establish prejudice and his
ineffective assistance of counsel claim necessarily fails.9
D. Defendant’s Request for an Evidentiary Hearing
¶46 Defendant argues that in rejecting his request for an
evidentiary hearing, the trial court denied him due process and
thereby abused its discretion. Defendant essentially maintains that
had he been afforded an evidentiary hearing, he would have been
9. We also determine Defendant’s claim of coercion to be without
merit. Defendant argues that he involuntarily pleaded guilty “due
to defense counsel’s undue pressure and improper inducement.”
The “undue pressure” to which Defendant refers includes his
allegations that his trial counsel convinced Defendant’s mother to
pressure Defendant into pleading guilty, allegedly by instilling fear
in her and counsel’s misrepresenting the length of time that
Defendant would spend in jail. According to Defendant, counsel’s
intent was to dispose of the case through a plea deal from the very
beginning of the case. These alleged facts are supported only by the
affidavits supplied by Defendant and his mother. Also, because
Defendant could have faced life in prison, see supra ¶ 43, it seems
highly unlikely that his trial counsel could have misrepresented his
possible sentence. Furthermore, so long as Defendant’s trial
counsel acted in good faith, trial counsel’s conduct under these
circumstances is insufficient to warrant reversal. For example, in
State v. Thorup, 841 P.2d 746 (Utah Ct. App. 1992), we rejected a
similar claim of undue influence where the trial court found that
“the evidence presented shows nothing more than an
attorney counseling the defendant and his family
with regard to what he considers to be the best
approach, knowing all of the facts from the
defendant’s point of view and giving his considered
judgment and advice to the defendant and his family
that the plea barg[a]in was in the defendant’s best
interest.”
Id. at 748 (alteration and omission in original) (citation omitted).
20110979‐CA 23 2013 UT App 198State v. Walker
able to present “more relevant information” regarding “serious
familial issues” that could not “be fully addressed through
affidavits.” Accordingly, Defendant asks us to “remand the case for
an evidentiary hearing.”
¶47 The trial court determined that an “evidentiary hearing
[was] not necessary in this matter” because “at best the hearing
would present the same information and testimony supplied by
Defendant.” The court further explained,
[If an evidentiary hearing were held, t]he recanting
victims would need to be represented by counsel and
possibly be subject to perjury charges. The State
would be at a great disadvantage since the long lapse
of time has destroyed memories and other evidence.
The State would be forced to rely on the evidence in
the record, which it has already supplied. The Court
gives credit to that record and its conclusions.
The court carefully weighed Defendant’s request for an evidentiary
hearing in light of other concerns such as prejudice to the State and
the unnecessary duplication of evidence.
¶48 In arguing that the trial court should have held an
evidentiary hearing, Defendant primarily relies on Summers v. Cook,
759 P.2d 341 (Utah Ct. App. 1988), and State v. Humphrey, 2003 UT
App 333, 79 P.3d 960. In Summers, we observed that regardless of
whether a defendant attacks a guilty plea directly through a motion
to withdraw or collaterally, “an evidentiary hearing must
ordinarily be held unless the record of a prior hearing shows
petitioner is clearly not entitled to relief.” 759 P.2d at 344–45. Here,
even though no record of a prior evidentiary hearing exists, the
trial court had access to Defendant’s numerous affidavits and other
exhibits. In the court’s view, this documentary evidence
accomplished the same purpose as would an evidentiary hearing.
Based on that information, the court determined that Defendant
was clearly not entitled to relief. In Humphrey, we remanded
20110979‐CA 24 2013 UT App 198State v. Walker
because “the record [was] unclear as to whether the court made the
necessary credibility assessment and factual determinations . . . to
support its ruling on [the defendant’s] motion to withdraw his
plea.” 2003 UT App 333, ¶¶ 11, 13. In this case, the trial court’s
written ruling adequately details its factual determinations and
credibility assessments of the key witnesses involved, including
Defendant, Defendant’s mother, and the victims.
¶49 Moreover, Defendant does not identify what additional
evidence he would have presented had he been afforded an
evidentiary hearing. For example, the State correctly notes that
Defendant “never explains what additional factual assertions his
victims might have made on the stand, nor does he offer any
reason why they were prevented from making those assertions in
their affidavits.” Defendant also fails to identify any additional
witnesses that he may have called or explain why those witnesses
did not submit affidavits. Thus, we conclude that the trial court did
not abuse its discretion in ruling on Defendant’s motion to
withdraw his guilty plea without an evidentiary hearing.
CONCLUSION
¶50 We hold that the trial court had jurisdiction over
Defendant’s motion to withdraw his guilty plea and that his
motion is not barred by claim preclusion or waiver. We also hold
that the court acted within its discretion in determining that good
cause did not exist to allow Defendant to withdraw his plea based
on his claims of factual innocence, alleged violations of rule 11(e),
and ineffective assistance of counsel. Finally, it was not an abuse of
discretion for the court to reject Defendant’s request for an
evidentiary hearing.
¶51 Affirmed.
20110979‐CA 25 2013 UT App 198