State v. Badikyan

2018 UT App 168THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
STEPAN BADIKYAN,
Appellant.
Opinion
No. 20151098-CA
Filed August 30, 2018
Second District Court, Farmington Department
The Honorable David M. Connors
No. 141700828
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Defendant Stepan Badikyan appeals the district court’s
denial of his motion to withdraw his guilty plea. We affirm.
State v. Badikyan
BACKGROUND
¶2 At their home in late May 2014, Defendant used a box
cutter to stab his wife (Victim) in the arm.1 He then agreed to
transport Victim to the hospital.
¶3 On the way, however, he changed course and told Victim
that they were “both going to die” that day. When the vehicle
stopped at an intersection, Victim fled from the car. Defendant
chased Victim and tackled her to the ground. He proceeded to
stab her in the side and cut her neck with the box cutter. Several
citizens intervened to stop Defendant, holding him down until
police took him into custody.
¶4 Following this incident, the State charged Defendant with
attempted murder, tampering with evidence, and aggravated
assault. Defendant initially entered not guilty pleas to all
charges, but he eventually reached a resolution with the State
pursuant to which Defendant agreed to plead guilty to
attempted murder. In exchange for his plea, the State agreed to
dismiss the remaining charges and agreed not to oppose a
request that the sentencing court grant Defendant credit for the
jail time he had already served.
¶5 An interpreter was present at the change-of-plea hearing
and provided translation for Defendant. Defendant’s counsel
advised the court that Defendant “speaks very little English, and
does not read English.” In anticipation of Defendant’s guilty
plea, counsel for Defendant (Plea Counsel) prepared a
1. Because there was no preliminary hearing or trial in this case,
we recite the facts related to the underlying criminal activity as
alleged in the charging information and contained in
Defendant’s plea agreement submitted to the court at the
change-of-plea hearing.
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“statement of defendant in support of guilty plea” (the Plea
Agreement), which contained information about the plea deal
and the agreed-upon facts. The Plea Agreement was written in
English and stated that “Defendant on or about May 29, 2014[,]
in Davis County[,] Utah, did attempt to intentionally and
knowingly cause the death of another. Furthermore[,] the
defendant was a co-habitant of the victim.” Plea Counsel
asserted in open court that the interpreter “translated [the Plea
Agreement] verbatim word-for-word” and stated that he had
“every confidence in the interpreter.” Plea Counsel also
expressed confidence that Defendant understood the Plea
Agreement.
¶6 The district court engaged in a colloquy with Defendant,
who confirmed through an interpreter that he understood and
agreed with the factual basis for the guilty plea. Defendant also
acknowledged his waiver of important constitutional rights, that
he was pleading guilty freely and voluntarily, and that he
understood the charge and possible sentence. Plea Counsel then
noted for the record that he had informed Defendant he was
subject to an immigration hold, and counsel described for the
court the inquiry he made to an immigration attorney regarding
the charges in this case. At the conclusion of the change-of-plea
hearing, the district court accepted Defendant’s guilty plea,
scheduled a sentencing hearing, and ordered the preparation of
a pre-sentence investigation report.
¶7 Shortly after the change-of-plea hearing, Defendant sent a
letter to the district court, pro se, requesting to “retract” his plea.
The court forwarded the letter to the State and Plea Counsel, and
the State filed a motion to strike the letter. At a subsequent
hearing, the parties discussed Defendant’s letter, and the court
granted the motion to strike “to the extent [the letter] purports to
be a motion for retraction of plea.” The State requested that the
district court appoint conflict counsel to represent Defendant,
which the court granted. Through his new counsel (Conflict
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Counsel), Defendant formally requested permission to withdraw
his guilty plea, asserting that it was not “knowing and
voluntary.” Defendant argued that he would not have entered
the plea if he had understood the true nature of the plea, if he
had had proper interpretation at the change-of-plea hearing, and
if he had not been coerced into pleading guilty by Plea Counsel.
¶8 The court held an evidentiary hearing to address
Defendant’s motion to withdraw his guilty plea, and at that
hearing the court provided Defendant a different interpreter
than the one present at the earlier change-of-plea hearing.
Defendant testified that he had concerns regarding the
translations given by the change-of-plea hearing interpreter. He
stated that the interpreter had read the Plea Agreement, but that
Defendant “couldn’t understand everything.” He later testified
that the interpreter explained the meanings of words to him,
“but there were times that [the interpreter] wouldn’t get the time
or opportunity to do it, maybe there were words that [the
interpreter] wouldn’t understand or he wouldn’t say.” When
asked whether he was pressured by Plea Counsel to plead
guilty, Defendant responded, “[N]ot really . . . pressure but like
convincing me nicely.” Defendant did not bring his alleged lack
of understanding to the attention of Plea Counsel, the
interpreter, or the court at the time.
¶9 Conflict Counsel asked whether Defendant would have
entered the plea had he understood the immigration
consequences, to which Defendant responded, “No, that’s not
the only reason. The other reason for withdrawal of guilty plea is
the . . . charge three to life, which is for murder, and I’m not a
murderer.” Defendant acknowledged signing the Plea
Agreement and confirmed for the court that he understood its
terms. The interpreter who assisted at the change-of-plea hearing
testified to his understanding of the court proceedings and the
words used in the Plea Agreement, and that he had read and
translated the Plea Agreement to Defendant word-for-word.
20151098-CA 4 2018 UT App 168State v. Badikyan
¶10 Plea Counsel testified that he visited Defendant in jail
without an interpreter to address medical care and housing
issues, but he retained an interpreter when addressing issues
related to Defendant’s case—the evidence, the plea, and the
immigration consequences of a guilty plea. Plea Counsel also
explained that, in the course of their discussions, Defendant
informed him of his mental health issues including depression
and anxiety. Plea Counsel had explored these mental health
issues with Defendant.2 Although explaining that he was not an
immigration attorney, Plea Counsel also relayed to Defendant
advice from an immigration attorney that pleading to any of the
three charges may lead to deportation.
¶11 In addition to testimonial evidence taken at the hearing,
the court listened to and considered the recording from the
change-of-plea hearing, including the plea colloquy itself. And,
after considering the evidence, the district court ruled that
Defendant had failed to carry his burden of establishing that his
guilty plea was not knowingly and voluntarily entered. This
decision rested on four conclusions. First, the court determined
that Plea Counsel provided “clear communication and advice”
regarding immigration consequences. Second, Plea Counsel did
not “oversell [the] proposed plea bargain,” and did not “try to
overcome the free will and the voluntariness of the decision to
accept the plea bargain by [Defendant].” Third, with respect to
the mental health impairment argument, the lawyers and
2. Conflict Counsel clarified in argument before the district court
that Defendant “did not express that mental illness played a part
in” the lack of a knowing and voluntary guilty plea. The district
court accordingly limited its consideration of this evidence to
determining whether, at the time he entered the guilty plea,
Defendant was operating under some mental health-related
impairment.
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interpreters involved with the case “never suggested to the
Court any lack of understanding [of the] proceedings or . . .
ability to comprehend those proceedings or to interact
appropriately with Counsel.” And finally, despite Defendant’s
claims of inaccurate translations, “there were no specific
instances given of particular inaccuracies of translation that
influenced [Defendant’s] decision” to plead guilty.
¶12 Subsequently, the district court issued its written findings
and order denying the motion to withdraw the guilty plea and
sentenced Defendant four days later. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 Defendant argues that the district court erroneously
denied his motion to withdraw his guilty plea. We generally
review the district court’s resolution of a motion to withdraw a
guilty plea for abuse of discretion, and review the district court’s
related findings of fact under the clearly erroneous standard.
State v. Beckstead, 2006 UT 42, ¶ 7, 140 P.3d 1288. We “will not
typically reach [an unpreserved issue] absent a valid exception
to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443.
As we explain in section I, however, the plea withdrawal statute,
Utah Code section 77-13-6 (the Plea Withdrawal Statute),
forecloses our review of Defendant’s unpreserved challenges to
his guilty plea.
¶14 Defendant next argues for the first time on appeal that, in
considering his motion to withdraw his plea, the district court
improperly limited its review to the record of the change-of-plea
hearing, violating his due process rights. “Constitutional issues,
including questions regarding due process, are questions of law
that we review for correctness.” Salt Lake City Corp. v. Jordan
River Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990(quotation simplified). “However, because these questions
20151098-CA 6 2018 UT App 168State v. Badikyan
require the application of facts in the record to the due process
standard, we incorporate a clearly erroneous standard for the
necessary subsidiary factual determinations.” Id. (quotation
simplified).
¶15 Defendant next maintains that he was deprived of the
right to effective assistance of counsel by Conflict Counsel’s
failure to assert the proper standard applicable to withdrawal of
a guilty plea. Specifically, Defendant asserts that Conflict
Counsel “allowed the district court to unduly restrict its review
of Defendant’s [motion to withdraw the guilty plea] . . . thereby
preclud[ing] consideration of matters outside the record of the
[change-of-plea] hearing.” “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Gardner, 2018 UT App 126, ¶ 13
(quotation simplified).
ANALYSIS
I. Defendant’s Unpreserved Challenge to his Guilty Plea
¶16 As an initial matter, we first must address an argument
the State raised in responding to this appeal. The State contends
that, under the facts of this case, this court lacks jurisdiction to
address Defendant’s challenges to his guilty plea pursuant to the
Plea Withdrawal Statute. The State asserts that, although
Defendant filed a timely motion to withdraw his guilty plea, he
failed to assert the particular challenge he now asserts on appeal.
Specifically, the State argues that this court does not have
jurisdiction to consider Defendant’s unpreserved legal theory
that he did not understand the elements of attempted murder,
which argument should have been asserted below in connection
with his motion to withdraw his guilty plea. Whether appellate
20151098-CA 7 2018 UT App 168State v. Badikyan
jurisdiction exists is a question of law. See State v. Allgier, 2017
UT 84, ¶ 13, 416 P.3d 546.
¶17 Defendant asserted below, among other things, that his
guilty plea was not knowingly and voluntarily made because “in
discussions of the plea agreement with [Plea Counsel,] . . .
[Defendant] did not fully understand the plea.” See supra ¶ 7.
Defendant explained that “he made the decision to plea[d guilty]
without having a clear understanding of the facts. That lack of
understanding was from the [interpreter’s] misinterpreted
statements as well as a lack of knowledge of the case.” In
contrast, Defendant’s legal theory on appeal is that he did not
understand the critical elements of attempted murder—the
offense to which he was pleading guilty. See Henderson v.
Morgan, 426 U.S. 637, 645 n.13 (1976) (explaining that “[a] plea
may be involuntary . . . [if the accused] has such an incomplete
understanding of the charge that his plea cannot stand as an
intelligent admission of guilt”(citation omitted)).
¶18 Generally, “[w]hen a party fails to raise and argue an
issue in the district court, it has failed to preserve the issue, and
an appellate court will not typically reach that issue absent a
valid exception to preservation.” State v. Johnson, 2017 UT 76,
¶ 15, 416 P.3d 443. Defendant concedes that he did not present
his critical elements theory to the district court, but nevertheless
seeks our review under the plain error exception to the
preservation rule.3 We conclude that the Plea Withdrawal Statute
3. In his reply brief, Defendant asserts without further discussion
that the “the challenges set forth in Defendant’s timely [motion
to withdraw guilty plea] are essentially one and the same as
those argued on appeal.” This statement lacks legal and factual
analysis and is therefore insufficient to carry his burden on
appeal. See Utah R. App. P. 24(a)(8).
20151098-CA 8 2018 UT App 168State v. Badikyan
forecloses our review of this unpreserved theory, even under the
plain error exception to preservation.
¶19 The Plea Withdrawal Statute sets forth the requirements
with which a defendant must comply in order to withdraw a
guilty plea. To properly request withdrawal of a guilty plea, a
defendant must (1) demonstrate that the plea was not knowingly
and voluntarily made, and (2) move to withdraw the plea prior
to sentencing. Utah Code Ann. § 77-13-6(2)(a)–(b) (LexisNexis
2017); see also Allgier, 2017 UT 84, ¶ 25. The Utah Supreme Court
recently explained that these two requirements “function as
rules of preservation.” Allgier, 2017 UT 84, ¶ 25; State v. Rettig,
2017 UT 83, ¶ 13, 416 P.3d 520; see also Gailey v. State, 2016 UT 35,
¶ 35, 379 P.3d 1278 (Lee, J., concurring) (explaining that rules of
preservation require a party to “raise issues or arguments at
specified times and by certain means”). A defendant who fails to
meet the statutory requirements will be deemed to have waived
the issue on appeal, and must instead pursue claims under the
Post-Conviction Remedies Act (PCRA).4 See Rettig, 2017 UT 83,
¶¶ 3, 17, 34, 47; Utah Code Ann. § 77-13-6(2)(c) (providing that
“[a]ny challenge to a guilty plea not made [before the sentence is
announced] shall be pursued under” the PCRA).
¶20 In Allgier, the defendant entered guilty and no contest
pleas to various criminal charges, 2017 UT 84, ¶ 8, and moved to
withdraw those pleas after sentencing, id. ¶¶ 10–11. The
supreme court determined that the defendant “forfeited his right
to direct appeal” by failing to file a timely motion to withdraw
the guilty plea. Id. ¶ 28. In so concluding, the court explained
that the Plea Withdrawal Statute “functions as a rule of
preservation,” but “does not allow defendants to work around
4. The PCRA is codified at Utah Code section 78B-9-101 to -405,
and PCRA petitions are governed by rule 65C of the Utah Rules
of Civil Procedure.
20151098-CA 9 2018 UT App 168State v. Badikyan
the jurisdictional bar through the exceptions to preservation—
plain error, exceptional circumstances, or ineffective assistance
of counsel.” Id. ¶ 26.5 Consequently, the Plea Withdrawal Statute
is “‘jurisdictional’ in the sense of foreclosing” the common-law
exceptions to preservation in plea-withdrawal appeals. Rettig,
2017 UT 83, ¶ 26.
¶21 Unlike in Allgier and Rettig, Defendant timely moved to
withdraw his guilty plea before the district court imposed a
sentence. See Utah Code Ann. § 77-13-6(2)(b). Further, the parties
do not dispute that, by his motion, Defendant asserted that his
guilty plea was not knowingly and voluntarily made. See id.§ 77-13-6(2)(a). Generally speaking, because Defendant complied
with the timing requirements of the Plea Withdrawal Statute, we
are not without jurisdiction to consider the district court’s denial
of Defendant’s motion to withdraw his guilty plea. Defendant’s
argument on appeal, however, does not challenge the district
court’s factual findings and legal conclusions. Instead, he asserts
an entirely different ground for why he should have been
allowed to withdraw his guilty plea, i.e., that he did not
understand the critical elements of the attempted murder charge.
The Plea Withdrawal Statute forecloses our review of these
questions, however, even under the plain error exception to
preservation.
¶22 Although the Rettig and Allgier cases are factually distinct
from this case, the supreme court’s interpretation of the Plea
Withdrawal Statute in those cases is instructive. “The standard
set forth in the Plea Withdrawal Statute is both a rule of
5. As in Allgier, the Rettig court concluded that it “lack[ed]
appellate jurisdiction to address [Rettig’s arguments on appeal]
given that Rettig failed to preserve his claims by not
withdrawing his guilty plea until after sentencing.” State v.
Rettig, 2017 UT 83, ¶ 11, 416 P.3d 520.
20151098-CA 10 2018 UT App 168State v. Badikyan
preservation and a jurisdictional bar on appellate consideration
of matters not properly preserved.” Rettig, 2017 UT 83, ¶ 27.
Because Defendant failed to properly preserve his legal theory in
the district court—that he did not understand the critical
elements of the attempted murder charge—we cannot now
consider this particular challenge on appeal. See id. ¶ 42. The
effect of the Plea Withdrawal Statute in this situation is therefore
“jurisdictional in the narrow sense of regulating the scope of
[our] authority to address” the question presented to us. Id. ¶ 38
(quotation simplified).
II. Defendant’s Challenges to the Evidentiary Hearing
¶23 In addition, Defendant argues that the district court
improperly limited its review during the evidentiary hearing on
his motion to withdraw his guilty plea. Particularly, he asserts
that the court limited its review to only the record of the change-
of-plea hearing, which violated his right to due process.
Relatedly, Defendant argues that he received constitutionally
ineffective assistance of counsel because Conflict Counsel
“allowed the district court to unduly restrict its review[,] . . .
preclud[ing] consideration of matters outside the record of the
plea review hearing.” Defendant failed to preserve these issues
below and asks us to review them under the common-law
exceptions to preservation.
¶24 In the interest of clarity, we note briefly that these alleged
procedural infirmities are not subject to the same preservation
and waiver requirement we described in section I. See supra
¶¶ 16–22; see also State v. Rettig, 2017 UT 83, ¶ 34, 416 P.3d 520.
These claims are challenges to the proceedings afforded
Defendant at the subsequent evidentiary hearing, and are
therefore not “challenge[s] to a guilty plea” itself. See Utah Code
Ann. § 77-13-6(2)(c) (LexisNexis 2017). Accordingly, we do not
review these claims under or through the framework of the Plea
Withdrawal Statute. Rather, alleged procedural infirmities in the
20151098-CA 11 2018 UT App 168State v. Badikyan
plea withdrawal proceeding are matters that draw our attention
to the fairness of the subsequent evidentiary hearing and to the
actions or inactions of defense counsel at that hearing (rather
than at the change of plea hearing). Success on these claims
would result in Defendant receiving a new evidentiary hearing,
and would not necessarily result in Defendant being allowed to
withdraw his guilty plea. We accordingly consider these
arguments as we would unpreserved procedural due process
and ineffective assistance of counsel claims, subject to the
common-law exceptions of plain error, ineffective assistance of
counsel, and exceptional circumstances. See State v. Johnson, 2017
UT 76, ¶ 19, 416 P.3d 443.
¶25 As to Defendant’s contention that the district court
limited its review, this assertion is simply incorrect. The district
court held an evidentiary hearing, during which it heard
testimony from Defendant, Plea Counsel, and the original
interpreter. The district court also listened to, and took into
account, the audio record of the change-of-plea hearing,
including the plea colloquy.
¶26 Defendant, contending that the district court limited its
review to only the record of the plea colloquy, directs us to three
lines in the 112-page transcript of the evidentiary hearing. At this
point in the transcript, the district court, announcing its ruling,
explained that it found no deficiencies in the district court’s
colloquy during the change-of-plea hearing that could support
withdrawal of the plea. As noted, however, the court’s brief
summary regarding the colloquy follows extensive preliminary
findings based upon testimony from three witnesses taken
during that evidentiary hearing. Defendant has not pointed to,
and we cannot discern, any limitation in the district court’s
review of Defendant’s motion to withdraw his guilty plea.
¶27 There is no question that the district court based its
findings and conclusions about the propriety of Defendant’s plea
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on more than just the record of the change-of-plea hearing. We
see no merit in this argument and, accordingly, no error in the
district court’s review.
¶28 Defendant also asserts a related contention that he was
deprived of the right to effective assistance of counsel at the plea
withdrawal evidentiary hearing. He argues that Conflict Counsel
performed deficiently by failing to assert the proper standard for
the court’s review of a motion to withdraw a guilty plea.
Specifically, he contends that counsel “allowed the district court
to unduly restrict its review[,] . . . preclud[ing] consideration of
matters outside the record of the plea review hearing.” Because
we have already concluded that the district court did no such
thing, any claim that counsel performed deficiently by failing to
advise the court or object to the scope of the court’s inquiry is
without merit.
CONCLUSION
¶29 We affirm the district court’s denial of Defendant’s
motion to withdraw his guilty plea. Defendant did not argue
below that he did not understand the critical elements of the
attempted murder charge, and the Plea Withdrawal Statute
precludes our review of that claim. Defendant has not
established that the court erred in reviewing his motion to
withdraw his guilty plea or that he received ineffective
assistance of counsel at his plea withdrawal evidentiary hearing.
20151098-CA 13 2018 UT App 168