State of Utah v. Sisneros, Jr.

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jerry Perfecto Sisneros, Jr.,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990599-CA

F I L E D
November 9, 2000 2000 UT App 316 -----

Third District, Salt Lake Department
The Honorable Roger A. Livingston

Attorneys:
Gregory G. Skordas, Rebecca C. Hyde, and Stephanie Ames, Salt Lake City, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Billings.

JACKSON, Associate Presiding Judge:

The only issue remaining after oral argument(1) is whether the trial court committed reversible error by not strictly complying with the plea colloquy requirements when it accepted Sisneros's guilty plea. See Utah R. Crim. P. 11. Sisneros argues that the trial court failed to do the following: (1) advise him of his right to compel the attendance of defense witnesses; (2) discuss the nature and elements of the offense on the record; (3) discuss the factual basis for the plea; (4) advise him of the time limit for filing any motion to withdraw his plea; (5) review the statements in the affidavit with him; (6) incorporate fully the terms of the written plea affidavit into the colloquy; and (7) establish on the record that he had read, understood, and acknowledged the contents of the affidavit.

A court does not need to review every Rule 11 requirement included in the affidavit. See State v. Tarnawiecki, 2000 UT App 186,¶8, 5 P.3d 1222 ("[T]he trial court is not required to cover every element of Rule 11 during the colloquy so long as the record reflects that the defendant was made aware of every right."). "'[S]trict compliance can be accomplished by multiple means so long as no requirement of the rule is omitted and so long as the record reflects that the requirement has been fulfilled.'" State v. Penman, 964 P.2d 1157, 1160 (Utah Ct. App. 1998) (quoting State v. Maguire, 830 P.2d 216, 218 (Utah 1992)). Because the plea affidavit signed by Sisneros contained all Rule 11 requirements, we do not need to address issues one through five individually. We conclude that the trial court did not commit reversible error when it did not review with Sisneros every Rule 11 requirement set forth in his plea affidavit.

Next, we address issues six and seven. First, did the trial court properly incorporate the affidavit into the colloquy? To properly incorporate a plea affidavit into the colloquy, "'[t]he trial court must conduct an inquiry to establish that the defendant understands the affidavit and voluntarily signed it,'" and must clarify omissions and ambiguities in the affidavit and uncertainties raised in the colloquy. Maguire, 830 P.2d at 217 (quoting State v. Smith, 812 P.2d 470, 477 (Utah Ct. App. 1991)). By properly incorporating a plea affidavit, the trial court establishes that the defendant has read, understood, and acknowledged the plea affidavit. See id. at 217-18. There are no "magic words" by which a trial court successfully establishes that the defendant understands a plea affidavit and has voluntarily signed it and that all omissions, ambiguities, and uncertainties have been clarified. Thus, we look at the entire record(2) when deciding whether the trial court has carried its burden when it accepts a guilty plea. SeeTarnawiecki, 2000 UT App 186 at ¶12 (stating burden is on trial courts to ensure strict compliance with Rule 11 when they accept guilty pleas). Here, the record demonstrates that the trial court properly incorporated the affidavit into the colloquy.

Second, did the trial court properly establish that Sisneros understood and voluntarily signed the affidavit and that all omissions, ambiguities, and uncertainties were clarified? In this case, the trial court inquired and "'establish[ed] that the defendant underst[ood] the affidavit.'" Maguire, 830 P.2d at 217 (quoting State v. Smith, 812 P.2d at 477). The court reviewed several Rule 11 requirements with Sisneros, referencing the plea affidavit. The court also asked whether Sisneros had "carefully reviewed" the plea affidavit with his attorney, and whether he understood he was waiving the important rights contained therein. Sisneros answered both questions in the affirmative.

The trial court inquired and established that Sisneros had "'voluntarily signed'" the plea affidavit. Id. The court asked Sisneros's attorney whether, in the attorney's opinion, Sisneros was willingly and voluntarily entering his plea. Counsel also answered in the affirmative. Although Sisneros did not raise any questions about omissions, ambiguities, or uncertainties, the court reviewed the affidavit and asked if Sisneros had any questions about it, to which Sisneros answered that he did not. Thus, we conclude that the trial court met its burden of "'conduct[ing] an inquiry to establish that the defendant understands the affidavit and voluntarily signed it'" and clarifying omissions and ambiguities in the affidavit and uncertainties raised in the colloquy, thereby properly and fully including the written plea affidavit into the colloquy. Id.

Affirmed.
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge

1. Sisneros conceded two of his three claims of error at oral argument: first, the date on which the thirty day time limit for withdrawing a guilty plea begins to run, and second, the sufficiency of the evidence regarding ineffective assistance of counsel. Accordingly, we will not address these issues. See Reedeker v. Salisbury, 952 P.2d 577, 583 n.5 (Utah Ct. App. 1998) (stating we need not review a trial court's ruling on issues conceded at oral argument); See also In re Adoption of W, 904 P.2d 1113, 1122-23 (Utah Ct. App. 1995) (refusing to address issue conceded by counsel at oral argument).

2. "[T]he record" includes the contents of properly incorporated documents that are clearly part of defendant's knowledge and understanding. See State v. Maguire, 830 P.2d 216, 218 n.2 (Utah 1992).