State v. Ferretti

2014 UT App 224_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH ,
Plaintiff and Appellee,
v.
ROBERT FERRETTI,
Defendant and Appellant.
Memorandum Decision
No. 20120366-CA
Filed September 18, 2014
First District Court, Logan Department
The Honorable Kevin K. Allen
No. 091100312
David M. Perry, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE
PAMELA T. GREENWOOD concurred.1
DAVIS, Judge:
¶1 Robert Ferretti appeals the trial court’s denial of his motion
to withdraw his guilty plea to intentional murder. We affirm.
¶2 Ferretti argues that he should be permitted to withdraw his
guilty plea because it was not knowingly and voluntarily entered.
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
State v. Ferretti
“[W]hether the trial court strictly complied with constitutional and
procedural requirements for entry of a guilty plea is a question of
law that is reviewed for correctness.” State v. Holland, 921 P.2d 430,
433 (Utah 1996).
¶3 “A guilty plea must be knowingly and voluntarily made in
order to protect a defendant’s due process rights.” State v. Stilling,
856 P.2d 666, 671 (Utah Ct. App. 1993). Rule 11(e) of the Utah Rules
of Criminal Procedure “is designed to protect these rights by
ensuring that the defendant receives full notice of the charges, the
elements, how the defendant’s conduct amounts to a crime, the
consequences of the plea, etc.” Salazar v. Warden, 852 P.2d 988, 991
(Utah 1993). Accordingly, rule 11(e) prohibits a trial court from
accepting a plea until it has found, inter alia, that “the plea is
voluntarily made,” that “the defendant understands the nature and
elements of the offense to which the plea is entered,” and that
“there is a factual basis for the plea.” Utah R. Crim. P. 11(e)(2),
(e)(4). Ferretti challenges the trial court’s compliance with each of
these provisions, asserting that his plea was not knowing and
voluntary, because he was under the influence of an antidepressant
at the time of the plea, he was not made aware of the elements of
the offense to which he was pleading, and he misunderstood the
relationship between the facts he admitted and the elements of the
crime. He also argues that his plea was not knowing and voluntary,
because the trial court misinformed him regarding the legal
standard for withdrawing his plea. We address each of these
arguments in turn.
¶4 First, because the issue was not preserved, we reject
Ferretti’s argument that his taking an antidepressant at the time of
the plea hearing rendered his plea unknowing and involuntary. See
generally State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (outlining
the preservation rule). Although Ferretti acknowledges the
preservation issue, he urges us to consider his argument under the
doctrine of exceptional circumstances. See State v. Weaver, 2005 UT
49, ¶ 18, 122 P.3d 566 (recognizing exceptional circumstances as an
exception to the preservation rule). However, we generally apply
20120366-CA 2 2014 UT App 224State v. Ferretti
this exception only in the case of “rare procedural anomalies,”
Holgate, 2000 UT 74, ¶ 12, in order “to assure that manifest injustice
does not result from the failure to consider an issue on appeal,”
State v. Irwin, 924 P.2d 5, 8 (Utah Ct. App. 1996) (citation and
internal quotation marks omitted). Ferretti has identified no such
circumstances here and we can see no basis for employing the
exception under the circumstances of this case.
¶5 We also reject Ferretti’s assertion that he was not made
aware of the elements of intentional murder. The plea affidavit
explicitly outlined the elements, the State’s burden to prove them
beyond a reasonable doubt if the case proceeded to trial, and the
factual basis for the plea—that Ferretti drove the victim to Cache
County, shot her in the head, pushed her body down an
embankment, and fled. The trial court orally reviewed each
paragraph of the plea affidavit in open court and confirmed that
Ferretti understood these provisions.2 Specifically, the court asked
Ferretti whether he understood “that the elements of [murder] are
that” he “intentionally or knowingly caused” the victim’s death, to
which Ferretti responded, “Yes.” Ferretti argues that his statements
at the end of the plea hearing that he “never intended initially” for
the victim to die and that he was reluctant to say he knowingly and
intentionally killed her because he “was under the influence of
drugs and alcohol at the time and [they] were in an argument”
2. Ferretti asserts that the plea affidavit was not incorporated into
the record because the trial court failed to specifically ask whether
Ferretti had read, understood, and acknowledged the plea affidavit
and that the trial court therefore failed to comply with rule 11 of
the Utah Rules of Criminal Procedure. However, even assuming
that the plea affidavit document was not properly incorporated,
every provision of the plea affidavit was made part of the record at
the plea hearing when the trial court reviewed the plea affidavit
with Ferretti essentially word-for-word and confirmed that Ferretti
understood each provision. Thus, Ferretti’s argument is without
merit.
20120366-CA 3 2014 UT App 224State v. Ferretti
indicate that he did not understand the elements. However, his
earlier acknowledgment contradicts this assertion. Furthermore,
after equivocating on whether he intentionally and knowingly
killed the victim, Ferretti confirmed to the court that he understood
that by shooting the victim in the head, he would be taking her life.
Thus, the plea hearing transcript refutes Ferretti’s claim that he did
not understand the elements of the crime to which he was
pleading.
¶6 Ferretti next argues that “the record fails to demonstrate an
adequate factual basis for Ferretti’s plea to murder.” Ferretti
compares his case to that of the defendant in State v. Thurman, 911
P.2d 371 (Utah 1996), who placed a pipe bomb under the seat of an
automobile. Id. at 372. The bomb detonated two days later, killing
a child. Id. The defendant pleaded guilty to aggravated murder
based on his knowledge that the bomb could cause death and
created a great risk of death to anyone in the vehicle. Id. The
defendant did not admit that he knew the bomb would cause death
and claimed that it was not his intention to kill the child. Id. at
374–75. However, the defendant acknowledged in his plea affidavit
that aggravated murder required an intentional or knowing killing.
Id. at 374. Despite this acknowledgment, the supreme court
“credit[ed] more fully [the defendant’s] repeated statements that he
did not intend to kill [the child] and his specific refusal to admit
that he knew the bomb would cause death.” Id. at 375. Accordingly,
the court ordered that the defendant be permitted to withdraw his
guilty plea. Id.
¶7 Ferretti asserts that we should likewise give greater weight
to his assertion that his killing of the victim was unintentional than
his acknowledgment of the elements in the plea affidavit and
before the court because he “did not have an accurate
understanding of the relationship between the law and the facts.”
However, unlike the defendant in Thurman, who never admitted
that he intended to kill the victim or that he knew his actions
would result in the victim’s death, Ferretti admitted that he
20120366-CA 4 2014 UT App 224State v. Ferretti
understood that by shooting the victim in the head, he would be
taking her life; the fact that the shooting was precipitated by
Ferretti’s use of drugs and alcohol and an argument with the victim
does not negate his intent to shoot her or his knowledge that doing
so would kill her.3 The facts Ferretti admitted sufficiently establish
the elements of the crime, and the trial court therefore did not err
in accepting Ferretti’s plea.
¶8 Finally, Ferretti argues that he should be permitted to
withdraw his plea because the trial court misinformed him that the
legal standard for withdrawing his guilty plea was good cause,
when the actual standard requires a showing that the plea was not
knowingly and voluntarily made. See generally Act of Mar. 5, 2003,
ch. 290, § 1, 2003 Utah Laws 1321 (amending the plea withdrawal
statute, which previously permitted withdrawal of a plea “upon
good cause shown,” to require “a showing that [the plea] was not
knowingly and voluntarily made”). We acknowledge the
potentially significant difference between the two standards. See
State v. Ruiz, 2012 UT 29, ¶¶ 31–32, 282 P.3d 998 (recognizing that
the old standard gave the trial court discretion to permit a
defendant to withdraw his plea for good cause even when the plea
was knowingly and voluntarily entered). However, we are not
convinced that a defendant’s misunderstanding of the legal
standard for withdrawing his plea renders that plea unknowing or
involuntary, and Ferretti has referred us to no authority suggesting
otherwise. Rule 11 does not require the trial court to inform the
defendant of the legal standard at all. See Utah R. Crim. P. 11(e).
And while the rule does require the trial court to inform the
defendant “of the time limits for filing any motion to withdraw the
3. To the extent Ferretti relies on statements he made for purposes
of the presentence investigation report (PSI) suggesting that the
gun went off accidentally, his argument is unavailing. The PSI was
created after Ferretti’s guilty plea and contradicted the facts
articulated in the plea affidavit and Ferretti’s own statements to the
trial court.
20120366-CA 5 2014 UT App 224State v. Ferretti
plea,” id. R. 11(e)(7), it explicitly provides that “[f]ailure to advise
the defendant of the time limits for filing any motion to withdraw
a plea . . . is not a ground for setting the plea aside,” id. R. 11(f).
Rule 11’s treatment of a defendant’s right to receive instruction
regarding the withdrawal of his plea suggests that a defendant’s
understanding of the rules and procedure for moving to withdraw
a plea does not have constitutional implications, and we fail to see
how that understanding impacts the voluntariness of a plea. Thus,
we are not convinced that the trial court was required to permit
Ferretti to withdraw his plea as a result of its misstatement.4
¶9 We hold that the trial court did not err in denying Ferretti’s
motion to withdraw his plea, because the plea was knowing and
voluntary and the trial court strictly complied with constitutional
requirements in accepting the plea. Accordingly, we affirm.
4. Ferretti’s argument also suggests that as a result of the trial
court’s misstatement, the court should have been bound by the
good cause standard rather than the knowing and voluntary
standard in ruling on his motion to withdraw his plea. Ferretti cites
no authority in support of this estoppel argument and, in any
event, it is by no means clear that the result would have been any
different even if the good cause standard had been applied. Thus,
we decline to further consider this argument.
20120366-CA 6 2014 UT App 224