State of Utah v. Powell

State v. Powell

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Rex Powell,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020678-CA
 

F I L E D
(December 18, 2003)
  2003 UT App 436

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Fourth District, Provo Department

The Honorable Ray M. Harding Jr.

Attorneys: Thomas H. Means, Provo, for Appellant

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Greenwood.

JACKSON, Presiding Judge:

Rex Powell challenges his conviction for driving under the influence. We affirm.

Powell first argues that there was insufficient evidence to support the jury's conclusion that he had actual physical control of the vehicle in which he was found intoxicated. When challenging the sufficiency of the evidence, "the standard of review is that the evidence and the reasonable inferences which may be drawn therefrom must be viewed in the light most favorable to the jury verdict." State v. Johnson, 774 P.2d 1141, 1147 (Utah 1989). Under this analysis, a conviction can only be overturned where the evidence "'is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted.'" State v. Holgate, 2000 UT 74,¶18, 10 P.3d 346 (quoting State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993)).

Here, the State presented evidence that the Baxleys observed Powell staggering from his truck toward their house, that Mr. Baxley confronted Powell in his front yard, that Powell was in a confused state during his confrontation with Mr. Baxley, that Powell stumbled back to his truck and drove along the street to the next house, that Mr. Baxley maintained eye contact with Powell's truck as Powell drove toward the street, and that the officers who arrived on the scene shortly thereafter found Powell sitting in his truck, smelling of alcohol. This overwhelming evidence supports the jury's determination that Powell was indeed in actual physical control of his truck while intoxicated.

Nevertheless, Powell asserts that his conviction was not supported by the evidence. He claims that the State failed to disprove his theory that a friend or relative had driven him to the Baxley's home and then dropped him off. However, the State presented clear evidence that there was only a single set of tire tracks in the snow leading from the Baxley residence to where Powell's truck was parked at the time of his arrest, that the officers only observed a single set of footprints in the snow leading from the driver's side of his truck toward the Baxleys' neighbor's home, that the Baxleys maintained eye contact with Powell and his truck through much of this incident, and that neither Mr. Baxley nor Mrs. Baxley observed any other person with Powell at any time. We are required to draw all reasonable inferences in favor of the jury verdict. Thus, we conclude that the evidence supports the jury's finding that Powell was the person in actual physical control of his truck.

Powell next argues that the trial court's enhancement of his sentence based on his two prior guilty pleas was improper. He contends that, in each of the prior two instances, the sentencing court had failed to fully comply with rule 11 of the Utah Rules of Criminal Procedure and that the use of these guilty pleas in the subsequent enhancement decision was improper.

It is well accepted that "an involuntary guilty plea cannot be used to enhance or support a subsequent conviction." State v. Branch, 743 P.2d 1187, 1192 (Utah 1987). Though "[s]trict compliance with rule 11(e) creates a presumption that the plea was voluntarily entered," State v. Martinez, 2001 UT 12,¶22, 26 P.3d 203 (quotations and citations omitted), "on collateral attacks, strict compliance with rule 11 is not necessary." State v. Gutierrez, 2003 UT App 95,¶7, 68 P.3d 1035. "On a collateral attack, a plea entered with the benefit of counsel is 'presumed to have been voluntary' absent evidence demonstrating lack of voluntariness." Id. at ¶8 (quoting Branch, 743 P.2d at 1192) (emphasis added). Thus, for the purposes of habitual offender enhancements, a defendant's assertion of involuntariness is ordinarily rebutted by a showing that he was represented by counsel. See, e.g., State v. Triptow, 770 P.2d 146, 149 (Utah 1989) ("After proof of the previous conviction is introduced, the burden is on the defendant to raise the issue and produce some evidence that he or she was not represented by counsel and did not knowingly waive counsel."); Branch, 743 P.2d at 1192 (predicating its rejection of the defendant's involuntariness argument on the grounds that the state had "demonstrated that both pleas were entered with the benefit of counsel" (emphasis added)).

Here, though Powell introduced evidence that there may have been rule 11 irregularities in his prior plea colloquies, he did not offer any evidence to indicate that he was not represented by counsel at the plea hearings or that his counsels' performance at those proceedings was constitutionally deficient. Thus, we conclude that Powell has not overcome the presumption of voluntariness that attached to his prior guilty pleas.

Accordingly, the trial court's use of those pleas as the predicate for a sentence enhancement was proper.

We affirm.

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Norman H. Jackson,

Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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Pamela T. Greenwood, Judge