State of Utah v. Whitmore

State v. Whitmore

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Wesley Scott Whitmore,

Defendant and Appellant.

 

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020471-CA
 

F I L E D
(November 6, 2003)
 

2003 UT App 376

 

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Fourth District, Provo Department

The Honorable Ray M. Harding Jr.

Attorneys: Jennifer Gowans and Pat Nolan, Provo, for Appellant

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Greenwood.

JACKSON, Presiding Judge:

Appellant Wesley Scott Whitmore challenges the district court's denial of his motions to withdraw his guilty plea or, alternatively, to declare a misplea. We review such decisions for abuse of discretion. See State v. Martinez, 2001 UT 12,¶14, 26 P.3d 203 (applying abuse of discretion standard to denial of motion to withdraw guilty plea); State v. Kay, 717 P.2d 1294, 1305 (Utah 1986) (discussing trial court's discretion in context of motion to declare misplea). We reverse and remand.

Whitmore argues his trial counsel provided ineffective assistance when counsel represented to Whitmore that he did not have a valid mistake of age defense to the charge of unlawful sexual conduct with a sixteen or seventeen-year-old. As a consequence of this advice, Whitmore argues, he pleaded guilty, but would have pleaded not guilty if he had believed he had a valid defense. Pursuant to State v. Martinez, 2000 UT App 320,¶6 n.2, ¶10, 14 P.3d 114, mistake of age is, in fact, a valid defense to the charge Whitmore faced.

State v. Rojas-Martinez, 2003 UT App 203, 73 P.3d 967, directly controls our decision in this case. In Rojas-Martinez, trial counsel advised the defendant, a Mexican citizen, that deportation "might or might not" be a consequence of his guilty plea. Id. at ¶2. This advice was incorrect, because federal law provided for automatic deportation upon conviction for the crime for which the defendant had been charged. See id. at ¶9. We held that an attorney "'fall[s] below an objective standard of reasonableness,'" id. at ¶7 (quoting United States v. Couto, 311 F.3d 179, 187 (2d. Cir. 2002), when he "affirmatively misrepresents deportation consequences to his or her client." Id. at ¶8 (emphasis in original). Further, we held that such unprofessional representation prejudices a defendant where the defendant would have pleaded not guilty had counsel offered reasonably competent advice. See id. at ¶11. Thus, the defendant satisfied both prongs of the test for determining ineffective assistance of counsel found in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Accordingly, we determined it was an abuse of discretion for the trial court to deny the defendant's motion to withdraw his guilty plea.

This case is indistinguishable from Rojas-Martinez. Whitmore's counsel offered advice that fell below an objective standard of reasonableness by affirmatively misrepresenting that Whitmore had no valid defense to the charges he faced. Further, "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different'" in that "he 'would not have pleaded guilty' had he known" of the valid defense. Rojas-Martinez, 2003 UT App 203 at ¶11 (quoting Martinez, 2001 UT 12 at ¶17); cf. Hill v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366, 371 (1985) (refusing to allow defendant to withdraw guilty plea because he failed to allege the kind of prejudice required).

Thus, we hold that Whitmore's counsel provided ineffective assistance, and Whitmore's guilty plea was grounded in that ineffective assistance. The trial court accordingly abused its discretion by refusing to allow Whitmore to withdraw his guilty plea, and we reverse and remand.

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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