State of Utah v. Farabee

State v. Farabee

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Ryan E. Farabee,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20000972-CA
 

F I L E D

(October 17, 2003)
 

2003 UT App 353

 

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Seventh District, Moab Department

The Honorable Lyle R. Anderson

Attorneys: Happy Morgan and K. Andrew Fitzgerald, Moab, for Appellant

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

THORNE, Judge:

    Ryan Ellroy Farabee appeals from his convictions for two counts of first-degree felony rape, in violation of Utah Code Annotated section 76-5-402 (1999), and from the trial court's subsequent denial of his motion to withdraw his guilty pleas. We affirm.

    "It is well established that '[s]trict compliance with rule 11(e) [of the Utah Rules of Criminal Procedure] creates a presumption that the plea was voluntarily entered.'" State v. Martinez, 2001 UT 12,¶22, 26 P.3d 203 (citation omitted). To demonstrate strict compliance, "[t]he record before [this] court must contain a basis" supporting a finding that the trial court fulfilled the "seven detailed and specific criteria" required under rule 11. State v. Maguire, 830 P.2d 216, 218 (Utah 1991). Included within these criteria is the requirement that the court make clear that the defendant understood the elements of the charged crime and the factual basis underlying the plea. See State v. Benvenuto, 1999 UT 60,¶11, 983 P.2d 556.

[The] record may reflect such a basis by multiple means, e.g., transcript of the oral colloquy between the court and defendant, contents of a written affidavit that the record reflects was read, understood, and acknowledged by defendant and the court, contents of other documents such as the information, presentence reports, exhibits, etc., similarly incorporated into the record, and so on.

Maguire, 830 P.2d at 218.

    Although we agree with Farabee's claim that the elements of the charged crime were not set forth accurately in the plea affidavit, and that the affidavit failed to articulate the factual basis underlying the plea, we do not agree that the plea was accepted in violation of rule 11. We conclude that the record reflects that Farabee was provided an accurate description of the elements of the crimes charged, and that Farabee provided a sufficient account of the factual basis underlying the crimes to satisfy the requirements of rule 11.

    Specifically, the amended information filed in this case sets forth that Farabee was charged with rape. See Utah Code Ann. § 76-5-402 (1999) (defining rape as "sexual intercourse with another person without the victim's consent"). Later, during the change of plea hearing, the trial court, with the assistance of both the prosecuting attorney and Farabee's attorney, clarified how consent was lacking in this case. The court, again with the attorneys' assistance, explained to Farabee that because he was the victim's uncle, and because the victim was under the age of 18 at the time of the sexual contact, Farabee occupied a position of special trust with the victim. Thus, the victim could not consent to the sex act. See Utah Code Ann. § 76-5-406(10) (1999) (stating that a sexual act amounts to rape when "the victim is younger than 18 years of age at the time of the offense [and] the actor . . . occupied a position of special trust in relation to the victim as defined in Subsection 76-5-404.1(3)(h)").(1) Moreover, during the hearing, the court asked Farabee if he was in fact the victim's uncle, and if he was aware that the victim was under 18 years of age at the time of the sexual contact. Farabee answered "yes" to both questions, thus eliminating any possible misunderstanding concerning the factual basis of the charges to which he was pleading guilty. Accordingly, the trial court did not violate rule 11 in taking Farabee's plea.(2)

    Farabee also questions the effectiveness of his trial counsel. "We apply the Strickland test to defendant's claim of ineffective assistance of counsel." State v. Martinez, 2001 UT 12,¶16, 26 P.3d 203. "Under the Strickland test, an individual has been denied the effective assistance of counsel if: (1) counsel's performance was deficient below an objective standard of reasonable professional judgment, and (2) counsel's performance prejudiced the defendant." Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052 (1984)). "Failure to satisfy either prong will result in our concluding that counsel" performed effectively. State v. Diaz, 2002 UT App 288,¶38, 55 P.3d 1131. "[T]o satisfy the prejudice requirement, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Martinez, 2001 UT 12 at ¶17 (citation omitted). "Specifically, in the context of a guilty plea, the 'defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have [instead] insisted on going to trial.'" Id. (citation omitted). Farabee has failed to shoulder this burden.

    Farabee argues that he was misled into pleading guilty when his counsel "guaranteed" that he would not spend any time in prison. However, the trial court, in its findings on Farabee's motion to withdraw his plea, did not find that Farabee's trial counsel "guaranteed" any sentence. Moreover, at the plea hearing, the trial court explained to Farabee the possible sentences he faced if convicted, asked Farabee if he understood those sentences, and explained to Farabee that the sentencing decision lay solely with the court and that the court was not bound by anyone else's recommendation.(3) Therefore, Farabee's argument fails.

    Finally, Farabee argues that his counsel was ineffective during sentencing. "To show prejudice under the second prong of the Strickland test, 'a defendant must proffer sufficient evidence to support "a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different."'" State v. Arguelles, 921 P.2d 439, 441 (Utah 1996) (citations omitted). Although it is true that Farabee's attorney failed to directly rebut the testimony of the victim's mother, had he done so, there is no "reasonable probability" the outcome would have been different. Id. Specifically, the trial court was provided with a presentence investigation report, which, inter alia, provided the court with most of, if not all of, the information testified to by the victim's mother. Moreover, the trial court expressed clear reservations about Farabee's version of the events, calling them "more of a fantasy than a reality." The court also expressed a clear concern over the results of Farabee's psychological evaluation, which characterized Farabee as manifesting heightened "levels of arousal to scripts detailing nonconsensual sexual interaction with female children." Thus, trial counsel's failure to directly rebut the testimony had little or no effect on the outcome. Because Farabee has not shown that there is any reasonable probability of a different outcome had counsel performed differently, this claim also fails.

    Accordingly, we affirm both Farabee's sentence and the trial court's denial of his motion to withdraw his guilty plea.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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Russell W. Bench, Judge

1. Utah Code Annotated section 76-5-404.1(3)(h) sets forth a list of roles, which, by definition, occupy a "position of special trust" in a victim's life. Utah Code Ann. § 76-5-404.1(3)(h) (1999).

2. We, however, encourage the trial court to take more care in the future when taking guilty pleas to avoid questions such as those raised in the instant case.

3. Furthermore, the evidence overwhelmingly supported the recommendation of Farabee's trial counsel. Most importantly, there is no question that Farabee, during his taped interview with the police, admitted to having sexual contact with the victim on three separate occasions. Additionally, in return for his pleading guilty to the two rape charges in Grand County, Utah, San Juan County agreed to dismiss its pending rape charge against Farabee. Thus, we conclude that Farabee has not shown the existence of a reasonable probability that "'he would not have pleaded guilty and would have [instead] insisted on going to trial.'" State v. Martinez, 2001 UT 12,¶17, 26 P.3d 203 (citation omitted).