State of Utah, v. Kalmar

State of Utah v. Kalmar IN THE UTAH COURT OF APPEALS
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MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellant,

v.

Linda A. Kalmar,
Defendant and Appellee.
 

Case No. 971747-CA

F I L E D
(November 19, 1998)
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Third District, Salt Lake Department
The Honorable David S. Young

Attorneys: Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellant
Joan C. Watt and Lynn R. Brown, Salt Lake City, for Appellee

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Before Judges Bench, Garff,(1) and Greenwood.

BENCH, Judge:

Section 77-13-6 of the Utah Code imposes a time limit for the withdrawal of a no contest plea: "A request to withdraw a plea of guilty or no contest is made by motion and shall be made within 30 days after the entry of the plea." Utah Code Ann. 77-13-6(2)(b) (1995). "This time limit, however, must be construed in conjunction with Rule 11 of the Utah Rules of Criminal Procedure." State v. Price, 837 P.2d 578, 582 (Utah Ct. App. 1992). Rule 11(e) provides that the court may not accept a no contest plea until the court has found "the defendant has been advised of the time limits for filing any motion to withdraw the plea." Utah R. Crim. P. 11(e)(7). Furthermore, the trial court's "[f]ailure to advise the defendant of the time limits for filing any motion to withdraw a plea . . . 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." Utah R. Crim. P. 11(f). "Therefore, although the language of section 77-13-6(2)(b) is unconditional, it is subject to an exception incorporated within Rule 11." Price, 837 P.2d at 582.

It is well established that trial courts bear the burden of showing strict Rule 11 compliance on the record at the time a defendant enters a guilty or no contest plea. See State v. Maguire, 830 P.2d 216, 218 (Utah 1991); State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987); State v. Smith, 812 P.2d 470, 477 (Utah Ct. App. 1991), cert. denied, 836 P.2d 1383 (Utah 1992). "When plea affidavits are properly incorporated in the record (as when the trial judge ascertains in the plea colloquy that the defendant has read, has understood, and acknowledges all the information contained therein), they may properly form a part of the basis for finding rule 11 compliance." Maguire, 830 P.2d at 217. Nevertheless, "a trial court's failure to strictly comply with Rule 11 in accepting a guilty or no contest plea constitutes good cause, as a matter of law, for the withdrawal of that plea." Smith, 812 P.2d at 476; see also State v. Jennings, 875 P.2d 566, 569 (Utah Ct. App. 1994) (indicating trial court abuses its discretion as a matter of law if it refuses to allow withdrawal of plea not made in strict compliance with Rule 11).

Here, defendant executed a plea affidavit in open court that included information about the thirty day time limit to withdraw a plea. Defense counsel certified on the affidavit that he knew defendant had read the affidavit or that he had read it to her. Before accepting the plea, the trial court conducted an abbreviated colloquy. During the colloquy, the court informed defendant of the possible penalties she faced and the constitutional rights she waived by entering into the plea agreement. However, the trial court never established, on the record, whether defendant read, understood or had any questions about the affidavit she executed. See Smith, 812 P.2d at 481 (Russon, J. concurring) ("The trial judge must satisfy him- or herself that where an affidavit is used, the defendant has read and understood it."). Because the trial court failed to establish that defendant read and understood the affidavit, it never properly incorporated the affidavit into the record of the plea hearing. See State v. Vasilacopulos, 756 P.2d 92, 94 (Utah Ct. App. 1988) ("Trial courts may not rely on defense counsel or executed affidavits to satisfy the specific requirements of Rule 11(e)."). Consequently, the record for review before this court does not reflect that defendant entered her plea having been advised of the time limits for filing a motion to withdraw the plea. We must therefore conclude that the trial court's failure to strictly comply with Rule 11(e)(7) in accepting defendant's no contest plea is good cause, as a matter of law, for the withdrawal of that plea. See Jennings, 875 P.2d at 569; Smith, 812 P.2d at 476.

Accordingly, we affirm the trial court's order allowing defendant to withdraw her no contest plea in abeyance.
 

______________________________
Russell W. Bench, Judge

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WE CONCUR:
 

______________________________
Regnal W. Garff, Senior Judge
 

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Pamela T. Greenwood, Judge

1. Senior Judge Regnal W. Garff, sitting by special appointment pursuant to Utah Code Ann. 78-2-4(2) (1996) and Utah Code Jud. Admin. R3-108(4).