State of Utah v. Schmitt

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Kurt Schmitt,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990925-CA

F I L E D
January 25, 2001 2001 UT App 21 -----

Fifth District, Cedar City Department
The Honorable J. Philip Eves

Attorneys:
Floyd W. Holm, Cedar City, for Appellant
Mark L. Shurtleff and Thomas Brunker, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Thorne.

BENCH, Judge:

Defendant Kurt Schmitt appeals from convictions for Possession of Laboratory Equipment or Supplies With Intent to Engage in a Clandestine Laboratory Operation, a first degree felony, in violation of Utah Code Ann. §§ 58-37d-4, -5 (1996 & Supp. 2000), and Possession of Methamphetamine, a second degree felony, in violation of Utah Code Ann. § 58-37-8 (Supp. 2000). Defendant contends that the trial court erred in denying his motion to enforce a plea offer. Defendant acknowledges that no valid contract was formed. However, Defendant asserts that his constitutional right to due process includes enforcement of a plea offer. We disagree.

Defendant relies heavily on Cooper v. United States, 594 F.2d 12 (4th Cir. 1979) in making his argument. In Cooper, the court stated that even though the defendant could claim no right to the proposed plea agreement under contract doctrine, the defendant was still entitled to relief under a broader constitutional right to "fairness." See id. at 16. Defendant contends that he had reasonable expectations about the continued availability of the plea offer, and that fairness should compel the trial court to grant his motion to enforce the plea offer.

Defendant fails, however, to address the effect of Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543 (1984) on Cooper. In Mabry, when defense counsel called the prosecutor to accept the plea offer, the prosecutor told defense counsel that a mistake had been made and offered a less advantageous plea agreement. See id. at 507, 104 S. Ct. at 2545. The defendant initially rejected the new offer, but after a mistrial, accepted it and pleaded guilty pursuant to the agreement. See id. at 507, 104 S. Ct. at 2546. The Supreme Court found that "[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of the court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution." Id. at 508-9, 104 S. Ct. at 2546 (footnote omitted).

The constitutional implications alluded to in Cooper and later refined by the Supreme Court in Mabry relate to the consensual nature of a guilty plea. If a defendant is induced to plead guilty and waive a constitutional right to trial because of promises in a plea agreement, which is later breached, due process rights are implicated. See State v. Stringham, 2001 UT App. 13,¶15, 412 Utah Adv. Rep. 39 (finding "no evidence that defendants took any action in reliance on the tentative plea agreement, and, therefore . . . suffered no prejudice"). In this case, however, Defendant did not plead guilty. Instead, Defendant was tried and convicted by a jury. He had full advantage of the constitutional rights listed in Rule 11 of the Utah Rules of Criminal Procedure, which must be voluntarily waived when entering a guilty plea. What Defendant is seeking to enforce did not even reach the level of a plea agreement, but was merely a plea offer. Thus, we conclude that the trial court was correct in denying Defendant's motion and in proceeding with the trial.

In denying Defendant's motion, the trial court found that no constitutional right was violated, and that Defendant's motion was untimely. Because we agree with the trial court's decision on the first basis, we need not address the second.

Defendant's convictions are affirmed.
 
 
 

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

WE CONCUR:
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge