Opinion
Case No. 20070918-CA.
Filed February 20, 2009. Not For Official Publication
Appeal from the Second District, Ogden Department, 061904066 The Honorable Pamela G. Heffernan.
Randall W. Richards, Ogden, for Appellant.
Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee.
Before Judges Thorne, Orme, and Billings.
The Honorable Judith M. Billings, Senior Judge, sat by special assignment pursuant to Utah Code section 78A-3-102 (2008) and rule 11-201(6) of the Utah Rules of Judicial Administration.
MEMORANDUM DECISION
Defendant Davy Genaro Valenciano pleaded guilty to distribution of a controlled substance, a second degree felony, see Utah Code Ann. § 58-37-8(1)(a)(ii) (Supp. 2008). Prior to sentencing, Defendant moved to withdraw his plea. The trial court denied his motion. Defendant now appeals the trial court's denial of his motion to withdraw his plea, arguing that his plea was not knowingly and voluntarily made because (1) he was confused concerning the evidence against him and (2) his counsel failed to adequately explain the evidence to him and pressured him into pleading guilty. We affirm.
Under Utah law, a guilty plea "may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made."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 (2008). Although a guilty plea is not required to strictly comply with rule 11 of the Utah Rules of Criminal Procedure,see Salazar v. Warden, 852 P.2d 988, 992 (Utah 1993), when a guilty plea is entered in compliance with rule 11, the plea is presumed to be knowing and voluntary, see State v. Martinez, 2001 UT 12, ¶ 22, 26 P.3d 203. Here, Defendant acknowledges that the trial court complied with rule 11 in accepting his guilty plea and that his plea is therefore presumed to be valid. Nevertheless, Defendant argues that he did not knowingly and voluntarily enter into his plea because he was confused and his counsel was ineffective. Thus, according to Defendant, the trial court abused its discretion in denying his motion to withdraw his plea.See generally, State v. Blair, 868 P.2d 802, 805 (Utah 1993) (stating that this court reviews "a trial court's denial of a motion to withdraw a guilty plea under an abuse-of-discretion standard").
First, Defendant claims that his guilty plea was not made knowingly and voluntarily because he was confused by the evidence. Defendant claims that his confusion was evident at the time he made his plea because earlier in the pretrial conference he voiced his desire for additional discovery. However, at the pretrial conference, the trial court asked the parties whether all discovery had been produced. Both defense counsel and the State agreed that the discovery had been completed. Defense counsel also stated that he had made "a lot of time available for [Defendant]" to discuss the evidence against Defendant. The trial court informed Defendant that the pretrial conference was Defendant's last court date before trial and, thus, was "the last day to consider any kind of a plea negotiation." The trial court then offered Defendant additional time to discuss with his lawyer any questions he might have concerning a possible plea agreement. Thus, according to the transcripts of the pretrial conference, it is clear that the prosecutor had complied with all of Defendant's discovery requests and had disclosed all of the State's evidence. It is also clear that defense counsel discussed this evidence with Defendant on multiple occasions before Defendant entered his plea.
Moreover, the prosecutor detailed the evidence and factual basis for Defendant's offense, after which the Defendant pleaded guilty. This evidence refutes Defendant's claim that his earlier confusion regarding discovery undercut the knowing and voluntary nature of his subsequent plea. See State v. Benvenuto, 1999 UT 60, ¶¶ 17-18, 22, 983 P.2d 556 (holding that vacillation and hesitancy leading up to a plea do not necessarily render the plea unknowingly or involuntarily made).
Further, throughout the rule 11 colloquy, Defendant consistently evidenced his understanding of the implications of his plea and never voiced confusion or hesitation in entering it. During the rule 11 colloquy, the trial court went through all of the elements of the offense to which Defendant pleaded guilty. The trial court then asked Defendant the following: if he understood the elements of the crime; if he understood what was happening; if he understood the State's burden of proof at trial should he decide to go to trial; if he understood that as a result of his guilty plea he could serve one to fifteen years in prison and pay up to $10,000 in fines; if he understood that he did not have to plead guilty; if he understood that he had a right to trial where he could present his own evidence and confront the evidence presented against him; and if he was entering his plea of his own free will and choice. Defendant unequivocally answered "yes" to all of those questions.
In sum, Defendant clearly stated that he understood a guilty plea would waive his rights to challenge the sufficiency of the evidence, to confront the prosecution witnesses, and to present his own evidence. Thus, we conclude that Defendant entered his guilty plea knowingly and voluntarily and that the trial court did not abuse its discretion in denying Defendant's motion to withdraw his plea.
Second, Defendant asserts that his counsel was ineffective for failing to adequately explain the evidence to him. To establish ineffectiveness of counsel, Defendant must demonstrate that his counsel's performance was deficient in that it fell "below an objective standard of reasonable professional judgment" and "`that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"State v. Martinez, 2001 UT 12, ¶¶ 16-17, 26 P.3d 203 (quotingStrickland v. Washington, 466 U.S. 668, 694 (1984)). In the context of a guilty plea, this requires Defendant to establish that "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. ¶ 17 (internal quotation marks omitted). Ultimately, however, "ineffectiveness of counsel that contributes to a flawed guilty plea . . . can spare a defendant the consequences of [his] plea only if the defendant makes out the same case required of every defendant who seeks to withdraw a plea: that the plea was not knowing and voluntary." State v. Rhinehart, 2007 UT 61, ¶ 13, 167 P.3d 1046 (emphasis added). Thus, based on our prior analysis that Defendant's plea was made knowingly and voluntarily, we do not address his argument that his counsel's ineffective assistance led to his guilty plea.
Accordingly, we affirm.
WE CONCUR: William A. Thorne Jr., Associate Presiding Judge, Gregory K. Orme, Judge.