Jones v. State of Utah

----ooOoo----

David Thayne Jones,
Plaintiff and Appellant,

v.

State of Utah,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010375-CA

F I L E D
October 10, 2002 2002 UT App 335 -----

Second District, Ogden Department
The Honorable W. Brent West

Attorneys:
David Thayne Jones, Draper, Appellant Pro Se
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee -----

Before Judges Billings, Bench, and Davis.
BILLINGS, Associate Presiding Judge:

Jones argues the trial court erred in dismissing his petition for a writ of habeas corpus. Jones first argues the trial court erred in not granting his petition because "[t]he facts of this case . . . did not support a charge of attempted murder, and the false statements of police officers were conflicting and allowed to go uncorrected on the record and even relied upon as fact when they were hearsay and never proven." Jones also argues the trial court erred in finding nothing "exculpatory or procedurally important was withheld or not provided to petitioner or his counsel" and concluding there was no prosecutorial misconduct. Jones claims the prosecution, to keep him from raising a voluntary intoxication defense, withheld blood alcohol test results and a nurse's statement that Jones was "totally incoherent."

We agree with the State that Jones, when he pleaded guilty, waived these challenges. The general rule "'is that by pleading guilty, the defendant is deemed to have admitted all of the essential elements of the crime charged and thereby waives all nonjurisdictional defects.'" State v. Munson, 972 P.2d 418, 420-21 (Utah 1998) (quoting State v. Parsons, 781 P.2d 1275, 1277 (Utah 1989)). Therefore, Jones waived his opportunity to attack the evidence against him once he pleaded guilty and mentally ill.(1)Cf. State v. Jones, 2002 UT 1,¶11, 44 P.3d 658 (holding prosecution had no obligation to prove defendant's intent because defendant had "formally admitted his intent by pleading guilty and mentally ill as charged" and therefore had waived the right to raise the argument).

Jones's final argument is that he was denied the effective assistance of counsel. "With respect to any ineffectiveness claim, a defendant must first demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment." State v. Litherland, 2000 UT 76,¶19, 12 P.3d 92. "Second, the defendant must show that counsel's deficient performance was prejudicial--i.e., that it affected the outcome of the case." Id.

Jones first asserts his multiple counsel were ineffective by allowing him to plead guilty and mentally ill even though there was insufficient evidence to support a charge of attempted murder. We conclude that accepting a plea bargain that dismissed all of the other charges in return for a plea of guilty and mentally ill was a sound tactical decision, especially since the reports did not differ in the fact that they alleged Jones intentionally drove his car head on into another person's car. See State v. Marvin, 964 P.2d 313, 317 (Utah 1998) (holding trial counsel reasonably advised defendant to plead guilty when there was ample evidence to support a conviction and defendant obtained a "meaningful benefit" from his plea). Therefore we conclude Jones's trial counsel acted reasonably.

Jones next argues his trial counsel were ineffective for waiving a preliminary hearing. One of Jones's trial counsel testified that he normally waived a preliminary hearing if it was "obvious" there was sufficient evidence to bind over a defendant. Jones's counsel further explained that when the evidence was likely sufficient to support a bindover, waiving a preliminary hearing was preferable to bringing out conflicting testimony that the State could then clarify before trial. We cannot say defense counsel acted unreasonably in concluding Jones was best served by waiving a preliminary hearing.

Jones next claims his counsel were ineffective by allowing him to plead guilty and mentally ill without first requesting a competency hearing. Although there was a question as to whether Jones was mentally ill, the evidence supports Jones's competency at the time of his plea. "[T]he concept of competency . . . is a narrower one than that of mental illness." Jacobs v. State, 2001 UT 17,¶23, 20 P.3d 382. At the change of plea hearing, the trial court asked Jones numerous questions, including, "Do you believe that your mental illness is affecting your ability to make a decision now?" Jones replied, "No." At the hearing on Jones's motion to withdraw his plea, one of his counsel stated his impression of Jones at the time of the plea was that Jones "did know . . . what was happening." Finally, the alienist who reviewed Jones's mental condition as part of the pre sentence report determined Jones was competent and his condition was due to severe alcohol and drug problems. This evidence indicates Jones was competent at the time of his plea; therefore Jones has failed to demonstrate his counsel were ineffective for failing to request a competency hearing. Cf. id. at ¶23 (finding defense counsel was reasonable to forgo a competency hearing and allow the defendant to plead guilty based on evidence of competency that included evidence of mental illness).

Finally, Jones claims his counsel were ineffective for not discussing a voluntary intoxication defense with him.(2) The trial court found "everyone was aware that the petitioner was severely intoxicated" and that Jones's counsel were aware of the voluntary intoxication statute. Jones does not properly attack these findings. We therefore accept these findings and conclude Jones's counsel were not ineffective.

We conclude the trial court correctly dismissed Jones's petition for a writ of habeas corpus.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
James Z. Davis, Judge

1. Jones argues in his reply brief that he could not have waived this challenge because he was incompetent at the time of his plea. Because Jones raises this issue for the first time in his reply brief, we will not address it. See Utah R. App. P. 24(c) ("Reply briefs shall be limited to answering any new matter set forth in the opposing brief."); Eddy v. Albertson's, Inc., 2001 UT 88,¶21, 34 P.3d 781 ("It is well established that 'we will not consider matters raised for the first time in the reply brief.'") (Citation omitted.).

2. Jones also alleges his counsel were ineffective for failing to perfect his appeal for his motion to withdraw his guilty plea, resulting in his appeal being dismissed for lack of prosecution. However, because Jones raises this issue for the first time in his reply brief, we will not address it. See Utah R. App. P. 24(c) ("Reply briefs shall be limited to answering any new matter set forth in the opposing brief."); Eddy, 2001 UT at ¶21, ("It is well established that 'we will not consider matters raised for the first time in the reply brief.'") (Citation omitted.).