Utah R. Crim. P. 11

As amended through April 24, 2024

Rule 11 - Pleas

(a)Right to Counsel. Upon arraignment, except for an infraction, a defendant must be represented by counsel, unless the defendant waives counsel in open court. The defendant must not be required to plead until the defendant has had a reasonable time to confer with counsel.

(b)Types of pleas. A defendant may plead not guilty, guilty, no contest, not guilty by reason of insanity, or guilty and mentally ill. A defendant may plead in the alternative not guilty or not guilty by reason of insanity. If a defendant refuses to plead or if a defendant corporation fails to appear, the court will enter a plea of not guilty.

(c)No contest plea. A defendant may plead no contest only with the consent of the court.

(d)Not guilty plea. When a defendant enters a plea of not guilty, the case will be set for trial. A defendant unable to make bail must be given a preference for an early trial. In cases other than felonies the court will advise the defendant, or counsel, of the requirements for making a written demand for a jury trial.

(e)Guilty plea. The court may refuse to accept a plea of guilty, no contest or guilty and mentally ill, and may not accept the plea until the court has found:

(e)(1) if the defendant is not represented by counsel, he or she has knowingly waived the right to counsel and does not desire counsel;

(e)(2) the plea is voluntarily made;

(e)(3) the defendant knows of the right to the presumption of innocence, the right against compulsory self-incrimination, the right to a speedy public trial before an impartial jury, the right to confront and cross-examine in open court the prosecution witnesses, the right to compel the attendance of defense witnesses, and that by entering the plea, these rights are waived;

(e)(4)(A) the defendant understands the nature and elements of the offense to which the plea is entered, 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;

(e)(4)(B) there is a factual basis for the plea. A factual basis is sufficient if it establishes that the charged crime was actually committed by the defendant or, if the defendant refuses or is otherwise unable to admit culpability, that the prosecution has sufficient evidence to establish a substantial risk of conviction;

(e)(5) the defendant knows the minimum and maximum sentence, and if applicable, the minimum mandatory nature of the minimum sentence, that may be imposed for each offense to which a plea is entered, including the possibility of the imposition of consecutive sentences;

(e)(6) if the tendered plea is a result of a prior plea discussion and plea agreement, and if so, what agreement has been reached;

(e)(7) the defendant has been advised of the time limits for filing any motion to withdraw the plea; and

(e)(8) the defendant has been advised that the right of appeal is limited.

These findings may be based on questioning of the defendant on the record or, if used, a written statement reciting these factors after the court has established that the defendant has read, understood, and acknowledged the contents of the statement. If the defendant cannot understand the English language, it will be sufficient that the statement has been read or translated to the defendant.

Unless specifically required by statute or rule, a court is not required to inquire into or advise concerning any collateral consequences of a plea.

(f)Motion to withdraw plea. Failure to advise the defendant of the time limits for filing any motion to withdraw a plea of guilty, no contest or guilty and mentally ill is not a ground for setting the plea aside, but may be the ground for extending the time to make a motion under Section 77-13-6.

(g)Plea in domestic violence offense. If the defendant pleads guilty, no contest, or guilty and mentally ill to a misdemeanor crime of domestic violence, as defined in Utah Code Section 77-36-1, the court will advise the defendant orally or in writing that, if the case meets the criteria of 18 U.S.C. § 921(a)(33) or Utah Code § 76-10-503 then pursuant to federal law or state law, it is unlawful for the defendant to possess, receive or transport any firearm or ammunition. The failure to advise does not render the plea invalid or form the basis for withdrawal of the plea.

(h)Plea recommendations.

(h)(1) If it appears that the prosecuting attorney or any other party has agreed to request or recommend the acceptance of a plea to a lesser included offense, or the dismissal of other charges, the agreement must be approved or rejected by the court.

(h)(2) If sentencing recommendations are allowed by the court, the court will advise the defendant personally that any recommendation as to sentence is not binding on the court.

(i)Plea agreements.

(i)(1) The judge will not participate in plea discussions prior to any plea agreement being made by the prosecuting attorney.

(i)(2) When a tentative plea agreement has been reached, the judge, upon request of the parties, may permit the disclosure of the tentative agreement and the reasons for it, in advance of the time for tender of the plea. The judge may then indicate to the prosecuting attorney and defense counsel whether the proposed disposition will be approved.

(i)(3) If the judge then decides that final disposition should not be in conformity with the plea agreement, the judge must advise the parties as to the nature of the divergence from the plea agreement and then call upon the parties to either affirm or withdraw from the plea agreement.

(j)Conditional plea. With approval of the court and the consent of the prosecution, a defendant may enter a conditional plea of guilty, guilty and mentally ill, or no contest, reserving in the record the right, on appeal from the judgment, to a review of the adverse determination of any specified pre-trial motion. A defendant who prevails on appeal will be allowed to withdraw the plea.

(k)Guilty and mentally ill. When a defendant tenders a plea of guilty and mentally ill, in addition to the other requirements of this rule, the court will hold a hearing within a reasonable time to determine if the defendant is mentally ill in accordance with Utah Code Ann. § 77-16a-103.

(l)Strict compliance not necessary. Compliance with this rule will be determined by examining the record as a whole. Any variance from procedures required by this rule which does not affect substantial rights will be disregarded. Failure to comply with this rule is not, by itself, sufficient grounds for a collateral attack on a guilty plea.

Utah. R. Crim. P. 11

Amended by Order dated November 23, 2016, effective 5/1/2017; amended effective 5/1/2018; amended effective 5/1/2022.

Advisory Committee Notes

These amendments are intended to reflect current law without any substantive changes. The addition of a requirement for a finding of a factual basis in section (e)(4)(B) tracks federal rule 11(f), and is in accordance with prior case law. E.g. State v. Breckenridge, 688 P.2d 440 (Utah 1983). The rule now explicitly recognizes pleas under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and sets forth the factual basis required for those pleas. E.g. Willett v. Barnes, 842 P.2d 860 (Utah 1992).

The amendments explicitly recognize that plea affidavits, where used, may properly be incorporated into the record when the trial court determines that the defendant has read (or been read) the affidavit, understands its contents, and acknowledges the contents. State v. Maguire, 830 P.2d 216 (Utah 1991). Proper incorporation of plea affidavits can save the court time, eliminate some of the monotony of rote recitations of rights waived by pleading guilty, and allow a more focused and probing inquiry into the facts of the offense, the relationship of the law to those facts, and whether the plea is knowingly and voluntarily entered. These benefits are contingent on a careful and considered review of the affidavit by the defendant and proper care by the trial court to verify that such a review has actually occurred.

The final paragraph of section (e) clarifies that the trial court may, but need not, advise defendants concerning collateral consequences of a guilty plea. The failure to so advise does not affect the validity of a plea. State v. McFadden, 884 P.2d 1303 (Utah App. 1994), cert. denied, 892 P.2d 13 (Utah 1995).