State of Utah V. Custard

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Bob Allen Custard,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990436-CA

F I L E D
October 28, 1999
    1999 UT App 311 -----

Sixth District, Richfield Department
The Honorable David L. Mower

Attorneys:
Bob Allen Custard, Marion, Illinois, Appellant Pro Se
Jan Graham and Christine Soltis, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

Appellant Bob Allen Custard appeals from the denial of a 1997 motion to withdraw the guilty plea underlying his 1980 robbery conviction.

Based upon the trial court record, Custard was convicted in 1993 of a federal offense of "Knowingly Concealing Stolen Property After Former Convictions of Two or More Felonies." His 1980 robbery conviction was a predicate offense for this subsequent conviction.

Pursuant to a plea bargain, Custard pleaded guilty to robbery, a second degree felony, and was placed on probation for three years. The Judgment and Order of Probation dated April 4, 1980 includes the following language: 5. Upon compliance with all terms of the probation agreement for the probationary term, the court will entertain a motion that the record of conviction be stricken. A minute entry prepared by a clerk at the time of sentencing reads: "Court told Defendant if he abides by all terms of probation, at the end of 3 years his Counsel may make a motion and Court will withdraw guilty plea of Defendant."

In 1997, Custard filed a Motion to Withdraw Guilty Plea. During a hearing, the trial court denied the motion as both untimely and moot. Custard later filed four motions, including a motion for rehearing and a "Notice of Appeal and Motion Requesting Apprisal of Appeal Rights and Procedures." On January 15, 1999, the trial court entered an order memorializing its ruling. On April 9, 1999, the trial court entered an order denying all the remaining motions and specifically directing the trial court clerk to treat the "Notice of Appeal and Motion for Apprisal of Appeal Rights" as a notice of appeal.

The State argues that, based upon the trial court docket, the motion for rehearing should be construed as a timely post-judgment motion suspending the time for appeal under Utah R. App. P. 4(b); accordingly, Custard must have filed a new notice of appeal following the denial of the motion. The record does not support this characterization of the motion for rehearing. We deem the notice of appeal to have been timely filed.

The trial court denied the motion to withdraw the guilty plea as untimely(1) and, alternately, denied the motion as moot. We may affirm the trial court's judgment on any proper ground, even though not relied upon below. See Gardner v. Madsen, 949 P.2d 785, 789 n.2 (Utah Ct. App. 1997).

Under the terms of the Judgment and Order of Probation, the court would "entertain a motion that the record of conviction be stricken" if Custard successfully completed probation. We presume the judgment was fashioned under former Utah Code Ann. § 77-35-17 (repealed July 1, 1980). Contrary to Custard's contention that he was entitled to withdraw his guilty plea as a matter of right pursuant to a plea bargain, the trial court retained discretion whether to strike the record of conviction. "Probation and expungement of one's record are neither matters of right nor of grace, but can only be granted when they appear to be compatible with the public interest." State v. Chambers, 533 P.2d 876, 878 (Utah 1975) (construing former Utah Code Ann. § 77-35-17 (repealed July 1, 1980)). In exercising its discretion, the court is required to consider such factors as the defendant's attitude, character, performance on probation, and acceptance of the duties of society. See id. at 879. The trial court's decisions regarding expungement will be set aside only if the court's broad discretion is shown "to have been abused, arbitrary, or capricious." Id.

The probationary period ended in January, 1982; however, Custard failed to make the motion to withdraw his plea until 1997, over fifteen years later. As a result of the failure to timely pursue the motion, the 1979 conviction has since served as a predicate offense for a 1993 conviction. In fact, this appears to be the motivation for seeking retroactive expungement of the conviction. To allow expungement under these circumstances would not be compatible with the public interest. In addition, the record is inadequate to allow this court to determine if good cause existed for expungement under all the circumstances. Accordingly, the trial court did not abuse its discretion in denying the motion.

The judgment is affirmed.
 
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. The trial court relied upon Utah Code Ann. § 77-13-6 (1995); however, the time limit in that section was not enacted until 1989 and was not in effect at the time of Custard's guilty plea. For the reasons set forth in this decision, however, we also conclude that the motion was untimely.