State of Utah v. Sinju

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Ernest Sinju,

Defendant and Appellant.
MEMORANDUM DECISION

(Not For Official Publication)

Case No. 981030-CA

F I L E D
May 6, 1999 1999 UT App 150 -----

Fourth District, Provo Department
The Honorable Ray M. Harding, Sr.

Attorneys:
Todd A. Utzinger, Salt Lake City, for Appellant
Jan Graham and Marian Decker, Salt Lake City, for Appellee

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Before Judges Wilkins, Greenwood, and Orme.

GREENWOOD, Associate Presiding Judge:

Defendant Ernest Sinju appeals the trial court's denial of his motion to withdraw his guilty plea. He argues his plea was invalid because the trial court did not adduce a sufficient factual basis to support the charges against him. He further claims that his actions, even if criminal, did not support a conviction under Utah Code Ann. § 58-37-8(1)(a)(ii) & -(8)(4) (1996 & Supp. 1998). We affirm the trial court's ruling but remand for resentencing based on the State's concession.

To preserve an issue for appeal, a defendant "must enter an objection on the record that is both timely and specific." State v. Rangel, 866 P.2d 607, 611 (Utah Ct. App. 1993). Placing these requirements on a defendant gives the trial court the first opportunity to address the issue and, if needed, expeditiously correct the error. See id. (citing State v. Johnson, 821 P.2d 1150, 1161 (Utah 1991)).

"Ordinarily, the failure to raise an issue before the trial court precludes its consideration on appeal, absent a claim of exceptional circumstances or plain error." State v. Jennings, 875 P.2d 566, 570 (Utah Ct. App. 1994) (citing State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987); State v. Brown, 856 P.2d 358, 359-60 (Utah Ct. App. 1993)). Even if an issue not preserved below has been fully briefed, we will not address it unless the defendant asserts on appeal before this court plain error or exceptional circumstances. See State v. Sepulveda, 842 P.2d 913, 917-18 & n.5 (Utah Ct. App. 1992).

In this case, defendant has argued neither plain error nor exceptional circumstances to justify a review of his claim. Consequently, we will not proceed further if we find defendant has failed to adequately preserve the issue below. See State v. Bryant, 965 P.2d 539, 546-47 (Utah Ct. App. 1998); Jennings, 875 P.2d at 570.

Defendant first argues that his apparent acquiescence in the trial court's conclusion that defendant's actions constituted "arranging to distribute" was not a waiver of his right to contest the court's ruling. Rather, defendant insists he merely acknowledged that he understood the court's ruling. Defendant, however, fails to explain precisely when or how he notified the trial court that he believed the facts adduced were insufficient to support the charge. Our own review of the plea hearing transcript also fails to reveal when defendant specified a legal theory for a valid objection. Thus, the trial court never had the opportunity to consider any objection defendant had to its interpretation of the statute before issuing its ruling.

In the same vein, defendant asserts he was not required to object to the trial court's statement that his conduct constituted arranging to distribute under the statute. Defendant cites State v. Emmett, 839 P.2d 781 (Utah 1992), and State v. Starnes, 841 P.2d 712 (Utah Ct. App. 1992), for support. These cases, however, both involved rulings preceded by a valid objection or a timely motion. See Emmett, 839 P.2d at 783 ("We have never required criminal defendants who have properly presented a claim to take exception to a trial court's erroneous ruling in order to preserve the issue on appeal." (Emphasis added.)); Starnes, 841 P.2d at 716 ("While the words 'due process,' or the language of [the applicable statute] were never expressly referred to by Starnes's counsel, an objection . . . was made, considered by the trial court, and rejected." (Emphasis added.)). In this case, defendant made no such objection. His argument therefore misses the mark because the State does not argue that defendant was required to contest the trial court's ruling after it was made; instead, the State asserts defendant never objected to the lack of a factual basis in the first place and thus did not preserve that issue for appeal. We agree.

Finally, defendant contends he made a valid objection when he moved to withdraw his guilty plea. Defendant argues that by asserting his innocence in his motion to withdraw the plea, the trial court was sufficiently notified of the inadequate factual basis for the plea, had an opportunity to consider that issue, and implicitly rejected defendant's objection by denying defendant's motion to withdraw the plea.

A general proclamation of innocence, however, does not constitute a valid objection to a statutory interpretation. Again, an "objection must '"be specific enough to give the trial court notice of the very error"' of which counsel [or defendant] complains." Bryant, 965 P.2d at 546 (quoting Tolman v. Winchester Hills Water Co., 912 P.2d 457, 460 (Utah Ct. App. 1996) (citation omitted in original)). Defendant's general statement in his motion that "[a]fter a long and careful[] consideration [I] have decided that [I] am not guilty [of] the charges [that were] brought against me by the State of Utah" failed to "give . . . notice of the very error" of which defendant now complains to the trial court.(1) Id. Defendant thus failed to preserve the issue for appeal.

We find no other basis--and defendant has not sufficiently brought to our attention any other--on which we may reach the merits of his claim.(2) Consequently, we have no choice but to affirm the trial court's denial of defendant's motion to withdraw his guilty plea. In addition, because the State concedes that the record lacks any facts indicating the offense occurred in a drug-free zone, we vacate defendant's second degree felony conviction, enter a judgment of conviction for a third degree felony, and remand for sentencing.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge

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I CONCUR:
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge

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ORME, Judge (concurring):

There is no question that the facts in the record do not support a conviction for the offense to which defendant pled guilty, i.e., arranging distribution of a controlled substance in violation of Utah Code Ann. § 58-37-8(1)(a)(ii) (1998). At most, they support a charge of attempted possession of a controlled substance under the law then in effect. See id.
§ 58-37-8(2)(a)(i), -8(6) (1998). For better or worse, it seems to be settled that no matter how advantageous the overall bargain may be, a defendant's plea to a charge not factually supported in the record cannot properly stand. See, e.g., Willett v. Barnes, 842 P.2d 860 (Utah 1992) (reversing denial of writ of habeas corpus where record did not support an adequate factual basis for guilty plea); State v. Breckenridge, 688 P.2d 440, 443-44 (Utah 1983) (reversing conviction entered on guilty plea where, inter alia, record did not support elements of crime).

Mindful of defendant's language problems and a combination of passive representation when his plea was taken; no representation when he moved, pro se, to set the plea aside; and uninspired representation when the motion was heard, it is tempting to simply ignore the procedural doctrines ably discussed in the main opinion and direct withdrawal of the guilty plea in the interest of justice. But predictability in the law is important and, in the vast majority of cases where they are employed, these doctrines promote, rather than inhibit, the orderly administration of justice. Thus, the temptation must be resisted, lest a series of well-meaning, ad hoc exceptions and deviations eventually leave these important doctrines meaningless phrases, invoked only sporadically, in haphazard or result-oriented fashion.

Thus, I concur in the main decision out of obedience to our well-established and largely sensible procedural precedents, confident that the wrong visited upon defendant can yet be rectified through collateral attack on the conviction incorrectly entered on his flawed guilty plea.
 
 
 

______________________________
Gregory K. Orme, Judge
 

1. Defendant challenges the State's assertion that defendant based his motion to withdraw his plea on the mere claim he had not purchased marijuana. Rather, defendant insists, the motion was based on his belief that he was not guilty "(i.e., the facts adduced did not support defendant's guilty plea to the charged offense)." Defendant takes a large leap, however, in interpreting that "i.e." statement. If defendant's sweeping assertion in his motion to withdraw his plea could be considered specific enough to give notice to the trial court, any objection could be bootstrapped into a defendant's proclamation of innocence.

2. We note that defendant had a right to raise an ineffective assistance of counsel claim for the first time on appeal. SeeState v. Vessey, 967 P.2d 960, 964 (Utah Ct. App. 1998) (stating review of ineffective assistance of counsel claim raised for first time on appeal is appropriate but only under narrow circumstances, such as "'when there is new counsel on appeal'") (quoting State v. Johnson, 823 P.2d 484, 487 (Utah Ct. App. 1991)). However, defendant's ineffective assistance of counsel claim was only marginally developed in a footnote in his opening brief and then received cursory treatment in defendant's reply brief. We consider the argument inadequately briefed and, therefore, decline to address it or the claims on which it is based. See Bryant, 965 P.2d at 548-49 (citing Utah R. App. P. 24(a)(9) (1998)).