Opinion
Case No. 20020005-CA.
Filed October 18, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Dennis M. Fuchs.
Franklin Richard Brussow, Salt Lake City, for Appellant.
Sarah A. Giacovelli, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and Orme.
MEMORANDUM DECISION
Appellant Rachael Staats appeals her conviction of Driving Under the Influence of Alcohol or Drugs, a class B misdemeanor.
Staats represents on appeal that she entered a conditional guilty plea, pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App. 1988), in order to preserve a right to appeal the denial of a pre-plea motion to suppress. The record does not support the claim that Staats entered a conditional guilty plea satisfying the Sery requirements. See id. at 939 (holding conditional pleas preserving claim on appeal, agreed to by defendant and prosecutor, and approved by trial court are permitted in Utah). "A defendant seeking appellate review pursuant to a conditional plea bears the burden of demonstrating that the conditional nature of the plea is unambiguously established in the trial court record." State v. Bobo, 803 P.2d 1268, 1271 (Utah Ct.App. 1990). The record must demonstrate: (1) the issues preserved for appeal, (2) the prosecutor's consent to entry of a conditional plea, and (3) the trial court's approval of the conditional plea. See id.; see also State v. Garza, 820 P.2d 937, 938-39 (Utah Ct.App. 1991) (dismissing appeal from denial of motion to suppress where record did not establish conditional nature of plea).
The record in this case is devoid of any information, apart from the recitations of the notice of appeal prepared by defense counsel, indicating the conditional nature of the guilty plea. Staats did not provide a transcript of the change of plea hearing, and the record does not include any affidavit executed in advance of entry of the guilty plea. Either of these might have demonstrated the conditional nature of the plea. Entry of a conditional guilty plea cannot be inferred from the fact that a pre-trial motion to suppress was denied. Instead, the record must demonstrate that a conditional guilty plea was entered by agreement of the defense and prosecution, and with approval of the trial court. It is the sole responsibility of an appellant to provide a record that unambiguously demonstrates the entry of a conditional plea. See Bobo, 803 P.2d at 1271. In the absence of a record establishing a conditional guilty plea, this court must apply the general rule that entry of a unconditional guilty or no contest plea "waives the right to appeal all pre-plea rulings." See Sery, 758 P.2d at 937; see also State v. Smith, 833 P.2d 371, 372 (Utah Ct.App. 1992) ("A voluntary plea of guilty or no contest constitutes a waiver of the right to appeal all nonjurisdictional issues, including denial of a motion to suppress."). The record provided by Staats in this case does not demonstrate that she entered a conditional guilty plea complying with Sery to preserve a right to appeal the denial of her motion to suppress.
Accordingly, we affirm the conviction.
Russell W. Bench, Judge, James Z. Davis, Judge, and Gregory K. Orme, Judge, concur.