Statev.Evans

Utah Court of AppealsDec 14, 2000
2000 UT App. 364 (Utah Ct. App. 2000)

Case No. 20000065-CA.

Filed December 14, 2000. (Not For Official Publication)

Appeal from the First District, Brigham City Department, The Honorable Thomas Willmore.

Justin C. Bond and Dale M. Dorius, Brigham City, for Appellant.

Jan Graham and Jeanne B. Inouye, Salt Lake City, for Appellee.

Before Judges JACKSON, BENCH, and BILLINGS.


MEMORANDUM DECISION


PER CURIAM:

Appellant Julianne Evans appeals her conviction following a guilty plea of Illegal Possession of a Controlled Substance, a third degree felony. Evans asserts that she entered a conditional guilty plea and preserved her right to appeal the denial of her motion to suppress.

The record does not contain any affidavit executed in advance of the guilty plea, and Evans did not cause the plea colloquy to be transcribed for inclusion in the record on appeal. Neither the minute entry from the change of plea hearing nor the Judgment and Order of Probation contains any indication that the guilty plea was conditional under State v. Sery, 758 P.2d 936 (Utah Ct.App. 1988). In a conditional guilty plea, a defendant expressly preserves the right to challenge particular issues on appeal and to withdraw the plea if the appeal is successful. See State v. Bobo, 803 P.2d 1268, 1271 (Utah Ct.App. 1990). In the absence of a conditional plea, "a voluntary guilty plea is a waiver of the right to appeal all nonjurisdictional issues, including alleged pre-plea constitutional violations." Sery, 758 P.2d at 938. This court ruled inBobo that "[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." Bobo, 803 P.2d at 1271. This necessarily includes a demonstration "that the prosecutor consented to the conditional plea and that the trial judge approved the plea." Id.

The present record contains no support for Evans's assertion that her guilty plea was conditioned upon preservation of her right to appeal the ruling on her motion to suppress. Under Bobo, it is appellant's responsibility to provide an adequate record to demonstrate the claimed conditional nature of her guilty plea. See id. In the absence of an adequate record, this court "must assume the regularity of the proceedings below." State v. Robertson, 932 P.2d 1219, 1226 (Utah 1997). In the context of this appeal, we must assume that the guilty plea was unconditional and, accordingly, constituted a waiver of all issues related to denial of the pre-plea motion to suppress. No further issues are raised for appellate review.

Accordingly, we affirm the judgment.

Norman H. Jackson, Associate Presiding Judge, Russell W. Bench, Judge, Judith M. Billings, Judge.