State v. Smith

812 P.2d 470, 162 Utah Adv. Rep. 39, 1991 Utah App. LEXIS 70, 1991 WL 90320
CourtCourt of Appeals of Utah
DecidedMay 30, 1991
Docket900087-CA
StatusPublished
Cited by29 cases

This text of 812 P.2d 470 (State v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Smith, 812 P.2d 470, 162 Utah Adv. Rep. 39, 1991 Utah App. LEXIS 70, 1991 WL 90320 (Utah Ct. App. 1991).

Opinions

GREENWOOD, Judge:

Appellant Joseph Michael Smith appeals the trial court’s denial of his motion to withdraw his plea of no contest to the charge of attempted sexual abuse of a child, Utah Code Ann. §§ 76-4-101 and 76-5-404.1(2) (1990), a third degree felony. We affirm the trial court’s decision.

[473]*473BACKGROUND

Appellant was originally charged with aggravated sexual abuse of a child, a first degree felony, Utah Code Ann. § 76-5-404.1(3) and (4) (1990). Pursuant to a plea agreement with the State, appellant entered his plea of no contest to the charge of attempted sexual abuse in July 1987. Because the Utah Supreme Court issued State v. Gibbons, 740 P.2d 1309 (Utah 1987), on June 30,1987, appellant’s plea fell within the Gibbons rule that guilty or no contest pleas must be entered in strict compliance with Rule 11, Utah Rules of Criminal Procedure.1

At the July 1987 plea hearing, appellant’s counsel indicated that appellant was “unwilling to admit any culpability in connection with this offense at all,” but was nevertheless willing to enter a no contest plea and to undergo sex offender rehabilitation treatment in lieu of incarceration. An affidavit was then submitted by appellant, indicating, among other Rule 11 requirements, that appellant understood the operation of his plea as a waiver of specific constitutional rights, and that the plea was voluntarily offered. The affidavit described the pleaded offense, stating that appellant had “[ajttempted to touch the genitals of a child under the age of 14 w/intent to cause sexual gratification or pain.”

The trial court explained to appellant that it considered the no contest plea to be equivalent to a guilty plea. Then, reviewing the affidavit, the court questioned appellant about his understanding of the pleaded offense, the State’s trial burden of proving all elements of the offense beyond a reasonable doubt, the fact that by his plea he was giving up his constitutional trial rights, the possible penalties for the pleaded offense, and other matters.

Turning to the evidence of the charged offense, the trial court asked appellant if he had reviewed the evidence with counsel and if, upon such review, both he and counsel had concluded that the evidence could result in conviction after a jury trial. Appellant answered affirmatively. Appellant also confirmed the affidavit statement that no promises or threats had been made to secure his plea.

The State repeated the elements of the original sexual abuse charge and summarized the evidence that it believed would prove the elements of that offense beyond a reasonable doubt:

[I]f the State were to try this case, it’s our position that we would have no difficulty proving the elements of the case, and specifically on or about September 24th of last year, 1986, that the defendant touched the genitals of ... a female child of 2½ years of age, that he did so with the intent to either arouse or gratify his or her sexual desires or to inflict physical or emotional pain to this child or to himself.
It would be our understanding, Your Honor, as I indicated, that were we to try this case these facts would come out through the testimony of expert witnesses as well as the testimony of the child and in the form of video tape.

The colloquy between appellant and the trial court regarding the no contest plea also focused on appellant’s desire to accept sex abuse treatment in lieu of incarceration. The trial court cautioned appellant that any agreement by the State to recommend treatment was not binding upon the court, and specifically addressed the likelihood that appellant’s failure to admit the offense could bar his acceptance into treatment:

THE DEFENDANT: I was under the understanding that there would be no incarceration.
THE COURT: That’s going to be a recommendation from the State. That may be a recommendation from the State; is that correct?
THE DEFENDANT: Yes, your honor.
THE COURT: Do you understand, as stated previously, that that is not binding upon me?
[474]*474THE DEFENDANT: Yes, your honor.
THE COURT: Do you understand what [the deputy county attorney] said also, and that is, that some of these programs or a specific program may not take you if you persist in claiming factually that you did not do what you’re charged with? Do you understand that?
THE DEFENDANT: Yes, your honor.
THE COURT: And I take it you also understand that part of the basis of [the deputy county attorney] saying that she’s going to recommend something other than incarceration is that you are in such a program.
THE DEFENDANT: Yes, your honor.

The court signed appellant’s affidavit, announced its finding that appellant’s no contest plea was knowingly and voluntarily offered, and accepted the plea.

Following the plea hearing, a ninety-day evaluation period ensued. A sentencing hearing was subsequently held in December 1987. The trial court expressed its ongoing concern with appellant’s failure to admit guilt. An Adult Probation and Parole (AP & P) officer, speaking on behalf of the Bonneville sex abuser treatment facility, stated that appellant’s ninety-day evaluation report indicated that some progress had been made by appellant toward admitting his offense. The AP & P officer indicated that the Bonneville program would accept appellant, with the understanding that he would be brought back into court if denial of his offense interfered with his treatment. The trial court then warned appellant that his probation, if granted, would depend upon satisfactory progress in the Bonneville program, as determined by the treatment staff there:

THE COURT: Mr. Smith, do you understand that if probation is granted, that one of the conditions of probation is that you enter and complete Bonneville, that if Bonneville, based on good, sound judgment, decides that you are not sufficiently advancing in that program, is that that will be deemed a violation of the condition of probation, which means your probation will be revoked and the remainder of your time will be served in the State Penitentiary?
THE DEFENDANT: Yes, your honor.

The alleged victim’s mother also attended the sentencing hearing, and the trial court sought her approval of treatment instead of incarceration: “It’s my view that the public is better served if he is referred to Bonneville to see if he can successfully complete that program. If he cannot, he will go to the State Penitentiary, and that’s up to Bonneville’s good judgment.” The victim’s mother agreed.

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Cite This Page — Counsel Stack

Bluebook (online)
812 P.2d 470, 162 Utah Adv. Rep. 39, 1991 Utah App. LEXIS 70, 1991 WL 90320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-utahctapp-1991.