State v. Guinn

State v. Guinn

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jackie Carroll Guinn,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010700-CA

F I L E D
(November 28, 2003)

2003 UT App 407

-----

Second District, Ogden Department

The Honorable W. Brent West

Attorneys: Dee W. Smith, Ogden, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

-----

Before Judges Billings, Davis, and Orme.

BILLINGS, Associate Presiding Judge:

Defendant Jackie Carroll Guinn appeals his conviction for sexual abuse of a child, in violation of Utah Code Annotated section 76-5-404.1(1) (1999), a second-degree felony. We affirm.

Guinn argues a letter sent by him to the court prior to sentencing was a timely motion to withdraw his plea. Guinn pleaded no contest to one count of sexual abuse of a child. Prior to sentencing, Guinn sent a letter to the trial court judge requesting sentencing according to a lesser included offense or dismissal of the action. At sentencing, neither Guinn nor his counsel suggested Guinn's letter to the court was a motion to withdraw his plea. Guinn was sentenced and subsequently filed an appeal. We granted a stipulated motion for remand to allow the trial court to determine if it received Guinn's letter and, if so, whether it should be construed as a timely motion to withdraw the plea.

At a hearing pursuant to our order, the trial court determined the letter he received from Guinn was not a motion to withdraw his plea but merely an expression of his innocence and a request that the court place him on probation. While a letter from a pro se defendant to withdraw a guilty plea may be considered a motion, see State v. Canfield, 917 P.2d 561, 561-62 (Utah Ct. App. 1996) (per curiam); cf. Acosta v. Labor Comm'n, 2002 UT App 67,¶6, 44 P.3d 819 (noting the petitioner "filed another pro se motion, in the form of a letter"); State v. Vessey, 967 P.2d 960, 961 (Utah Ct. App. 1998) (referring to a pro se motion as a letter), construing this letter as a motion to withdraw plea is inconsistent both with the letter's stated purpose and Guinn's testimony at sentencing.

The letter stated: "So I'am [sic] asking that you consider a lesser charge or a lesser included offense of gross lewdness,

. . . a dismissel [sic]." We conclude the trial court properly interpreted the letter as an expression of Guinn's innocence and request for leniency in sentencing and not as a motion to withdraw his plea. Further, on remand, Defendant presented no additional evidence of any motion to withdraw his guilty plea. Therefore, we affirm.

______________________________

Judith M. Billings,

Associate Presiding Judge

-----

WE CONCUR:

______________________________

James Z. Davis, Judge

______________________________

Gregory K. Orme, Judge