State of Utah v. Chatelain

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State of Utah,
Plaintiff and Appellee,

v.

Corey Chatelain,
Defendant and Appellant.

AMENDED MEMORANDUM DECISION(1)
(Not For Official Publication)

Case No. 20000676-CA

F I L E D
March 8, 2001 2001 UT App 81 -----

Second District, Ogden Department
The Honorable Michael J. Glasmann
The Honorable W. Brent West

Attorneys:
Brian R. Florence, Ogden, for Appellant
Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Orme.

BENCH, Judge:

Defendant Corey Chatelain appeals from the trial court's order denying his motion to withdraw his guilty plea.

We have twice upheld the ruling in State v. Price, 837 P.2d 578, 582-83 (Utah Ct. App. 1992), that the thirty-day window of opportunity for a defendant to withdraw a guilty plea under Utah Code Ann. § 77-13-6 (1999) is jurisdictional and runs from the date of the plea hearing. See State v. Ostler, 2000 UT App 28,¶7, 996 P.2d 1065, cert. granted, 9 P.3d 170 (Utah 2000); State v. Tarnawiecki, 2000 UT App 186,¶10, 5 P.3d 1222. Following the doctrine of stare decisis, we again uphold Price and refuse to address Defendant's challenge to the law in that case. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) (noting that the doctrine of stare decisis applies to decisions made by different panels of this court). Because Defendant submitted his motion to withdraw his guilty plea more than thirty days after he entered the plea, the trial court lacked jurisdiction to consider the merits of the motion. See Utah Code Ann. § 77-13-6(2)(b); Price, 837 P.2d at 583.

Notwithstanding the trial court's lack of jurisdiction to consider the merits of Defendant's motion, we may consider the merits for the first time on appeal if Defendant establishes plain error or exceptional circumstances. See Ostler, 2000 UT App 28 at ¶8. "To succeed on a claim of plain error, a defendant has the burden of showing '(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.'" Id. (quoting State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)) (alteration in original). On the authority of Tarnawiecki, we are compelled to hold that the trial court committed plain error by failing to comply with Rule 11 of the Utah Rules of Criminal Procedure when it accepted Defendant's guilty plea.(2)

In Tarnawiecki, the trial court accepted defendant's guilty plea after advising her, among other things, in the Rule 11 colloquy, "You won't go to trial . . . [or] have a jury." Id. at ¶17. Prior to the colloquy, the defendant in Tarnawiecki consulted with her attorney regarding the rights she would be giving up with a guilty plea and signed a plea affidavit containing an express waiver of the right to a jury trial. See id. Neither the judge's colloquy nor the plea affidavit mentioned either "speedy" trial or "impartial" jury. The Tarnawiecki court found these instructions inadequate because "defendant was neither advised of nor waived her right to a speedy trial before an impartial jury." Id.

In the present case, Defendant argues in his brief that the trial judge failed to inform him of his "right to a speedy public trial before an impartial jury." In the Rule 11 colloquy, the trial court asked Defendant, "Do you understand that you don't have to plead guilty; that you have the right to go to trial before a judge or jury?" No mention was made in the colloquy of either a "speedy" trial or an "impartial" jury, and the record here contains no indication that Defendant signed a plea affidavit. Thus, we follow Tarnawiecki and conclude that the court failed to adequately advise Defendant of his right to a speedy trial before an impartial jury as required by Rule 11, and such failure meets the three requirements for plain error. See id. at ¶18 (holding failure to adequately advise defendant of her right to a speedy trial before an impartial jury was a harmful error that should have been obvious to the trial court).

The State cites State v. Visser, 2000 UT 88,¶11, 408 Utah Adv. Rep. 9, and other similar cases as support for its argument that although the exact words of Rule 11 were not used, the rule's substantive meaning was conveyed and Defendant's waiver of his right to a speedy trial before an impartial jury was knowing and voluntary. These cases, however, are factually distinguishable from the present case. The defendant in Visser, for example, entered a guilty plea midway through trial. In Visser, the trial court asked defendant, "Do you understand that we were right in the process of having a trial [and that] [y]ou have a right to continue that trial through to a jury verdict[?]" Id. at ¶4. The supreme court concluded that this question adequately advised defendant of his right to a speedy trial because a recitation of those exact words "would have communicated no more than his actual trial experience to that point." Id. at ¶14. In the present case, Defendant pleaded guilty before trial, and had experienced no portion of a speedy trial before an impartial jury. Although the State contends that Defendant's pretrial proceedings were speedy, the right to a speedy trial is not the same as speedy pretrial proceedings. Furthermore, speedy pretrial proceedings give the defendant no experience with an impartial jury.

Having found plain error with the trial court's inadequate Rule 11 instruction on the Defendant's right to a speedy trial before an impartial jury, we vacate Defendant's conviction and allow him to withdraw his guilty plea without addressing Defendant's other plain error and exceptional circumstances arguments. See Tarnawiecki, 2000 UT App 186 at ¶19 (finding plain error on only one of the seven Rule 11 requirements is enough to vacate).

We reverse and remand for further proceedings.
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 

______________________________
Gregory K. Orme, Judge

1. This amended decision merely changes the caption of the case.  Judge Glasmann accepted Defendant's guilty plea and Judge West denied Defendant's motion to withdraw his guilty plea and
sentenced Defendant.

2. We recognize that Tarnawiecki relies upon Ostler. SeeTarnawiecki, 2000 UT App 186 at ¶11. Should the supreme court reverse Ostler, Tarnawiecki may no longer control the analysis.