In Re State Ex. Rel. K.M.

2006 UT App 74, 136 P.3d 1230, 546 Utah Adv. Rep. 3, 2006 Utah App. LEXIS 17

Opinions

OPINION

THORNE, Jr., Judge:

¶ 1 K.M., a juvenile, admitted to one count of child abuse homicide, a third degree felony if committed by an adult. See Utah Code Ann. § 76-5-208 (2003). K.M. appeals, challenging the juvenile court’s denial of her motion to withdraw that admission. We affirm.

FACTUAL BACKGROUND

¶ 2 On or about September 4, 2002, fifteen-year-old K.M. gave birth to a four-pound infant boy in the basement bathroom of her home. K.M. failed to summon help or otherwise attempt to keep the infant alive. Instead, she secreted the baby in the bathroom’s window well. She later informed her mother of the baby’s existence, and he was found dead in the window well.

¶ 3 The State brought a delinquency charge of murder, a first degree felony if committed by an adult, against K.M. for the death of the infant. See Utah Code Ann. § 76-5-203 (2003). One day into her trial, K.M. and the State reached an agreement to resolve the matter, and K.M. entered an admission to an amended charge of child abuse homicide, a third degree felony if committed by an adult. See id. § 76-5-208.

¶ 4 The juvenile court, with the assistance of K.M.’s counsel, then conducted an admission colloquy pursuant to Utah Rule of Juvenile Procedure 25. K.M. was informed of and waived her trial rights, and she asserted to the court that she understood what she was doing and that she was not acting under any coercion. The court read K.M. the elements of the offense of child abuse homicide and asked her to admit or deny that on or about September 4, 2002, she, acting “with criminal negligence[,] caused the death of a person under 18 years of age and the death resulted] from child abuse.” K.M. admitted this offense.

¶ 5 The juvenile court then took a statement from K.M. to establish a factual basis for her admission. K.M. told the court in great detail about the events surrounding the child’s birth and her actions thereafter. She explained that she did not know that she was pregnant and thought that she was merely having severe menstrual cramps. At some point she went into the bathroom and felt an “urge to push” and a “little body fell into [her] arms.” The baby was not moving and K.M. pinched off the umbilical cord. K.M. did not want to put the baby on the toilet seat or the cold floor, so she opened the basement window and placed him in the window well. She watched him for five or ten seconds, and he remained motionless. She then attempted to clean herself up, and more than once she lost consciousness due to blood loss. K.M.’s mother discovered her and called an ambulance, which took K.M. to the hospital. At the hospital, K.M. admitted to her mother that she had given birth and placed her baby in the window well.

¶ 6 K.M. admitted to the juvenile court that she could have, and should have, summoned her aunt to assist her and the baby at the time of the birth. Her aunt, a licensed nurse with thirteen years of experience in newborn intensive care, was present in the home on the night of the birth and had been caring for K.M. throughout the evening.

¶ 7 K.M. testified that the baby never made a noise and was not breathing. At that point, the juvenile court asked if there was any evidence that the baby was born alive, and both the prosecutor and K.M.’s counsel responded that there was. K.M., however, would not admit to the court that the baby was born alive. Nevertheless, in light of the rest of K.M.’s testimony and the medical evidence identified by the parties’ counsel, the juvenile court determined that there was a factual basis for K.M.’s admission to one count of child abuse homicide. The court then accepted the admission.

¶ 8 Prior to disposition, and after speaking with either a probation officer or a presen-tence investigator, K.M. filed a motion to withdraw her admission. The motion stated four grounds:

1. [K.M.] alleges that she was unaware that she was admitting to causing the death of the child who is the subject of this action.

2. [K.M.] alleges that she was pressured or coerced into admitting the amended allegation.

3. [K.M.] alleges that she believed the disposition in this case was guaranteed and not subject to the Court’s discretion^¹]

4. [K.M.] alleges that she understood little or none of the colloquy with the Court or her counsel at the time of her admission.

The juvenile court heard testimony and argument on K.M.’s motion at the January 16, 2004 disposition hearing. K.M. testified that she had understood all of the rights that she waived at the admission hearing except for the right against self-incrimination. She also testified that she did not understand a lot of the “big words” used at the admission hearing, and that she felt she had been coerced into entering the admission. K.M.’s therapist also testified at the hearing.

¶ 9 At the conclusion of the testimony, the juvenile court heard arguments from both parties and took a short recess to allow the judge to review her notes and pertinent case-law. When the court reconvened shortly thereafter, it denied K.M.’s motion, finding that K.M. had made a knowing and voluntary admission to the crime of child abuse homicide. Disposition followed immediately thereafter, and the court imposed and suspended thirty days of detention and placed K.M. on probation, ordering her to participate in various programs and complete 250 hours of community service. K.M. now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 10 The only issue on appeal is the propriety of the juvenile court’s denial of K.M.’s motion to withdraw her admission. We review a juvenile court’s denial of a motion to withdraw an admission for abuse of discretion. See State v. Beckstead, 2004 UT App 338, ¶ 5, 100 P.3d 267, cert. granted, 109 P.3d 804 (Utah 2005). Factual findings made by the juvenile court in conjunction with its denial of a withdrawal motion are reviewed under the clearly erroneous standard, while its legal conclusions are reviewed for correctness. See id.

ANALYSIS

¶ 11 K.M. challenges the juvenile court’s denial of her motion to withdraw her admission to child abuse homicide, a third degree felony if committed by an adult. See Utah Code Ann. § 76-5-208. We conclude that the juvenile court properly determined that K.M.’s admission was knowing and voluntary, and that it did not exceed the bounds of its discretion when it denied K.M.’s motion to withdraw that admission.

I. Rule 11 Caselaw Applicable

¶ 12 As a preliminary matter, we note that there appears to be little or no caselaw specifically analyzing the admission requirements of rule 25 of the Utah Rules of Juvenile Procedure. See Utah R. Juv. P. 25. Both parties cite extensively to criminal cases analyzing rule 11 of the Utah Rules of Criminal Procedure to support their respective positions. See Utah R.Crim. P. 11. We agree with the parties that rule 11 eases are a persuasive source of authority to guide our interpretation and application of rule 25,² an approach this court has taken in other juvenile court contexts. See In re S.A., 2001 UT App 308, ¶ 36, 37 P.3d 1172 (employing Utah Rule of Criminal Procedure 22 caselaw to interpret similar provision in rule 54 of the Utah Rules of Juvenile Procedure); In re W.S., 939 P.2d 196, 200-01 (Utah Ct.App.1997) (applying Utah Rules of Evidence case-law to rule 46(b) of the juvenile rules, which allows the admission of reliable hearsay).

¶ 13 Applying the rule 11 cases, certain principles and considerations governing juvenile admissions under rule 25 become apparent. Rule 25 is intended “to ensure that [juveniles] know of their rights and thereby understand the basic consequences of their decision to [admit to an allegation].” State v. Visser, 2000 UT 88,¶ 11, 22 P.3d 1242. Juvenile courts have a duty to “personally establish that the [juvenile’s admission] is truly knowing and voluntary and establish on the record that the [juvenile] knowingly waived his or her constitutional rights.” State v. Conwell, 2005 UT 28, ¶ 11, 114 P.3d 569 (quotations and citation omitted). While the juvenile court has a duty to strictly comply with rule 25, see Visser, 2000 UT 88 at ¶ 11, 22 P.3d 1242, “strict compliance does not mandate a particular script or rote recitation of the rights listed.” State v. Dean, 2004 UT 63, ¶ 9, 95 P.3d 276 (quotations and citation omitted).

¶ 14 Of particular relevance here, a juvenile must be afforded the opportunity to withdraw her admission if it can be shown that she lacked understanding or knowledge of the consequences of her plea, or that her plea was involuntary. See Utah R. Juv. P. 25; State v. Martinez, 2001 UT 12,¶¶ 21-25, 26 P.3d 203. “Withdrawal ‘is a privilege, not a right, that is left to the [juvenile] court’s sound discretion.’ ” Dean, 2004 UT 63 at ¶ 11, 95 P.3d 276 (quoting State v. Gallegos, 738 P.2d 1040, 1041 (Utah 1987)). In reviewing a juvenile court’s denial of a motion to withdraw an admission, this court is not limited to a review of the denial of the motion itself and “may consider the record of the plea proceedings, including the plea colloquy and plea affidavit or statement.” Id. at ¶ 12.

II. K.M.’s Motion to Withdraw

¶ 15 Turning now to K.M.’s arguments on appeal, K.M. argues generally that her admission was not knowing and voluntary. Specifically, she argues that she was not informed of her right to testify at trial and did not waive that right at the admission hearing. K.M. also argues that she did not admit to facts sufficient to support an admission of child abuse homicide because she never admitted that the baby was born alive. Finally, K.M. argues that her testimony at the withdrawal hearing established various other infirmities in her understanding at the time of her admission, rendering her admission unknowing and involuntary.

A. Failure to Preserve

¶ 16 K.M.’s arguments that she did not knowingly waive her right to testify at trial, and that she did not admit that her child was born alive, were not preserved below. K.M.’s motion to withdraw did not raise either of these issues. As the Utah Supreme Court explained in State v. Dean, attacks on the sufficiency of a guilty plea are not preserved for appeal when the “motion to withdraw and the asserted grounds therefor fail[ ] to put the trial court on notice of the alleged error.” 2004 UT 63, ¶ 14, 95 P.3d 276.

¶ 17 The motion’s assertion that K.M. “was unaware that she was admitting to causing the death of [her] child” did not raise the issue of inadequate factual basis. Instead, this assertion implied that K.M. had admitted to causing the baby’s death, but had done so unwittingly. Similarly, her allegation “that she understood little or none of the colloquy” did not directly or specifically put the juvenile court on notice that her right to testify at trial had not been properly addressed and waived at the colloquy. Further, at the withdrawal hearing, K.M.’s counsel affirmatively conceded that the court had “go[ne] through the proper colloquy” and that there was therefore a presumption that K.M.’s admission was knowing and voluntary. See State v. Thorup, 841 P.2d 746, 748 (Utah Ct.App.1992).

¶ 18 As in Dean, K.M. “did not sufficiently bring the[se] issue[s] to the court’s attention in [her] motion to withdraw.” 2004 UT 63 at ¶14, 95 P.3d 276. Accordingly, if we are to reach these issues, it is only through the plain error doctrine. See id. We are unable to do so here. K.M.’s appellate argument in favor of applying the plain error doctrine is itself inadequate to properly raise the issue.³ See, e.g., State v. Gomez, 2002 UT 120, ¶ 29, 63 P.3d 72 (discussing the circumstances under which briefing will be deemed inadequate). K.M.’s appellate briefing does not address whether the alleged errors should have been obvious to the juvenile court, or whether K.M. suffered harm in the sense that she would have refused to enter the admission had the errors not occurred. Both obviousness and harm are required elements of the plain error doctrine. See Dean, 2004 UT 63 at ¶¶ 15-22, 95 P.3d 276. In the absence of reasoned argument and authority to the contrary, we must assume that the alleged errors were neither plain nor harmful.

B. K.M.’s Admission

¶ 19 Foreclosing the issues that K.M. raised on appeal but failed to preserve below, we are left with a generalized challenge to the juvenile court’s denial of K.M.’s withdrawal motion, based solely on her subsequent allegations that her admission was not knowing and voluntary. We address KM.’s argument from the starting point that her admission was taken in compliance with rule 25 of the Utah Rules of Juvenile Procedure.⁴ There is, therefore, a presumption that her admission was knowing and voluntary. See State v. Humphrey, 2003 UT App 333, ¶ 10, 79 P.3d 960; see also Thorup, 841 P.2d at 748. We conclude that the juvenile court acted within the bounds of its discretion in finding that K.M. did not rebut this presumption in her motion to withdraw or the accompanying hearing.

¶ 20 K.M. testified at the admission colloquy that she understood and voluntarily waived her constitutional rights; that no one forced her to enter the admission; and that she admitted that she, acting “with criminal negligence[,] caused the death of a person under 18 years of age and the death resulted] from child abuse.” She also gave the juvenile court a lengthy factual narrative describing her recollection of the birth of her child. She recounted how she gave birth to a “little body” and that it did not move, make a sound, or breathe. And she testified that she could have and should have sought help from her aunt, a former newborn intensive care nurse, who was in the house caring for K.M. throughout the night.

¶ 21 In her motion to withdraw, K.M. made several assertions that directly contradicted her admission hearing testimony. She claimed that she did not know that she was admitting to causing the death of her child, that she was pressured or coerced into admitting the allegation, and that she understood little or none of the colloquy at the time of her admission. At a hearing in support of her motion, K.M. testified that there were “big words” in the colloquy that she did not understand at the time. Nevertheless, she testified that she understood every specific right identified in the colloquy except for the right against self-incrimination. She testified that, although she had been strongly advised by her parents to admit the allegation, that no one had forced her to do so. And she testified that she had admitted only to neglecting “a little body” and failing to call for help or seek medical attention.

¶ 22 Assuming that the juvenile court gave credence to K.M.’s testimony at the withdrawal hearing, that testimony is not necessarily inconsistent with her testimony at the admission hearing. K.M. claimed that she did not understand what she was doing at the admission hearing because the juvenile court used “big words.” Yet, she also claimed to have understood her right to trial, her right to confront and cross-examine opposing witnesses, and her right to testify and to have process for the attendance of witnesses. See Utah R. Juv. P. 25.

¶ 23 The only right enumerated in rule 25 that K.M. claimed not to have understood was the right against self-incrimination, which she defined at the withdrawal hearing as “the right to take back [her] plea.” However, the right against self-incrimination was explained to K.M. in three different ways at the admission hearing: that she could not “under any circumstances, be forced to incriminate [her]self;” that she could not “be compelled to give evidence against [her]self;” and that she would be giving up the right “by making an admission today” because she would “have to tell [the court] what happened.” K.M.’s withdrawal hearing testimony did nothing to obviate her previous assertion that she understood these less formal, yet perfectly valid, expressions of her Fifth Amendment right. See State v. Conwell, 2005 UT 28, ¶ 12, 114 P.3d 569 (stating that strict compliance with rule 11 does not require a particular script); State v. Visser, 2000 UT 88, ¶ 11, 22 P.3d 1242 (“[T]he substantive goal of rule 11 ... should not be overshadowed or undermined by formalistic ritual.”).

¶ 24 At the withdrawal hearing, K.M. gave some incorrect or nonsensical definitions of other legal terms: “the right to remain silent,” “the right to have the case proven beyond a reasonable doubt,” and “confidentiality.” However, these terms were not used at the admission hearing. While her apparent inability to correctly define these terms may support some inference about K.M.’s intelligence or education level, it is not necessarily inconsistent with her previous understanding of the different terms presented to her at the admission hearing. And nothing at the withdrawal hearing suggested⁵ that K.M. was not aware that she was being asked to verify her understanding of the various “big words” presented to her. To the contrary, she admitted that she knew she was lying to the juvenile court when she said she understood her rights.

¶ 25 Similarly, K.M.’s withdrawal hearing testimony did not contradict, but rather confirmed, her colloquy testimony that no one had forced her to enter her plea. K.M. also confirmed at the withdrawal hearing that she had neglected her baby by failing to seek help from her aunt or otherwise seek medical attention for the newborn. Child abuse homicide requires only criminally negligent abuse resulting in the death of a minor, and K.M.’s testimony is not inconsistent with the elements of that crime.⁶

¶ 26 For these reasons, the juvenile court did not abuse its discretion in denying K.M.’s withdrawal motion even if it found K.M.’s withdrawal hearing testimony to be credible. However, the court could also have simply found K.M.’s withdrawal hearing testimony to be incredible. When it comes to factual matters, “ ‘we defer to the juvenile court because of its advantageous position with respect to the parties and the witnesses in assessing credibility and personalities.’” In re S.Y., 2003 UT App 66, ¶ 11, 66 P.3d 601 (quoting In re G.B., 2002 UT App 270, ¶ 9, 53 P.3d 963).⁷ K.M.’s withdrawal hearing testimony was at best self-serving and at worst approached the absurd. K.M.’s credibility at the withdrawal hearing was further undermined by the very purpose of her appearance there: to convince the juvenile court that she had already lied to the court at the admission hearing. Under these circumstances, there is nothing in the record that would cause us to depart from our traditional deference to the juvenile court’s credibility determinations.

CONCLUSION

¶ 27 We conclude that K.M. did not preserve any issues for appeal that necessitate reversal of the juvenile court’s denial of her withdrawal motion. We grant great deference to the juvenile court’s credibility determinations, and one explanation for the denial of K.M.’s motion is that the juvenile court simply did not believe her testimony at the withdrawal hearing. However, even assuming that K.M.’s later testimony was credible, there is nothing in that testimony that necessarily defeats the presumption that her admission was knowing and voluntary.⁸ Accordingly, the juvenile court acted within the bounds of its discretion when it denied K.M.’s motion to withdraw.

¶ 28 Affirmed.

¶ 29 I CONCUR: JUDITH M. BILLINGS, Judge.

1 . K.M.’s withdrew this issue in the juvenile court and it is not before us in this appeal.

2 . The applicability of rule 11 caselaw may be limited in certain circumstances, as when the adult and juvenile rules contain different express provisions, or when policy considerations mandate different results in the best interests of the child. See, e.g., In re E.R., 2000 UT App 143, ¶ 12, 2 P.3d 948 (noting that "in some contexts we have employed a more flexible standard when cases involve the best interests of children”).

3 . K.M.’s companion argument that we should reach these issues under an ineffective assistance of counsel analysis is also inadequately briefed. Additionally, we note that she is barred from raising an ineffective assistance of counsel argument on direct appeal when her appellate attorney represented her below. See State v. Garrett, 849 P.2d 578, 580 n. 3 (Utah Ct.App.1993) ("An additional requirement to hearing an ineffective assistance claim on direct appeal is that the defendant must be represented by new counsel on appeal because it is unreasonable to expect [trial counsel] to raise the issue of his own ineffectiveness at trial on direct appeal.” (alteration in original) (quotations and citation omitted)).

4 . As discussed above, K.M.'s counsel conceded to the juvenile court that her admission colloquy was proper. While we proceed on that concession, we note that the juvenile court failed to directly address K.M.'s right to testify at trial and that there was some lack of agreement between K.M. and the juvenile court as to the exact nature of the events surrounding her baby's death. We caution the juvenile court that these two aspects of the colloquy, had they been preserved as issues for appeal, represent potential flaws in an otherwise commendable colloquy. See State v. Visser, 2000 UT 88, ¶ 11, 22 P.3d 1242 (requiring plea colloquies to strictly comply with rule 11).

5 . Aside from the potential but unpreserved flaws discussed above, there is nothing in the record of K.M.'s admission hearing that would have placed the juvenile court on notice of the lack of understanding that K.M. later professed. Cf. State v. Beckstead, 2004 UT App 338, ¶¶ 10-11, 100 P.3d 267 (holding that the trial court erred when it refused to investigate defendant's capacity at plea hearing after court was placed on notice that defendant had been drinking), cert, granted, 109 P.3d 804 (Utah 2005). While K.M. was clearly emotional at her admission hearing, she was sixteen years old, represented by counsel, and interacted with the juvenile court in clear, conversational English. She affirmatively represented to the juvenile court that she understood the consequences of her admission and that she entered it voluntarily, and in the absence of notice to the contrary, the court could properly rely upon K.M.’s representations.

6 . K.M. expressed concern at the withdrawal hearing that a social worker had informed her that the crime she had admitted to consisted of actively abusing and killing her newborn infant. This is an incorrect interpretation of the relevant statutes. See Utah Code Ann. §§ 76-5-109, -208 (2003 & Supp.2005); Provo City v. Cannon, 1999 UT App 344, ¶¶ 5-14, 994 P.2d 206 (holding that child abuse need not be predicated on a physical impact upon a child, but rather upon any act that imperils or endangers a child’s physical well-being). The child abuse required for conviction under Utah Code section 76-5-208 can be established by neglect or failure to act resulting in the death of a child, and it appears that such neglect is all that K.M. admitted.

7 .The dissenting opinion identifies at least five factors for juvenile courts to consider in evaluating whether a juvenile's admission is knowing and voluntary, including the juvenile's age, intelligence, and emotional state. These appear to be the very sorts of factors that juvenile judges already routinely rely upon, and we see no reason to mandate any particular list of factors.

8 . Although well-intentioned, the rule envisioned by the dissenting opinion could significantly alter the juvenile admission process. Unintended, but foreseeable, consequences of such a change might include uncertainty and undue complication at admission hearings, an inappropriate lessening of appellate deference towards the finality and gravity of admissions, and an outbreak of "buyer's remorse” amongst juvenile offenders upon realizing the implications of their admissions.