State v. Hittle

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

David Hittle,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20000712-CA
 

F I L E D
(November 12, 2004)
 

2004 UT App 407

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Third District, Sandy Department

The Honorable Denise P. Lindberg

Attorneys: Edward R. Montgomery, Salt Lake City, for Appellant

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

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Before Judges Davis, Greenwood, and Thorne.

GREENWOOD, Judge:

    This case is before us for the second time, after remand by the Utah Supreme Court. See State v. Hittle, 2004 UT 46, 94 P.3d 268. The supreme court reversed our decision(1) that omission of the word "speedy" during a rule 11 plea colloquy constituted plain error. See id. at ¶5. The supreme court applied the holding of State v. Dean, 2004 UT 63, 95 P.3d 276, issued the same day as Hittle. See Hittle, 2004 UT 46 at ¶5. On remand we address issues raised by Defendant David Hittle in the first appeal but not addressed in our first decision. We affirm the trial court's denial of Defendant's motion to withdraw his guilty plea.

    Defendant first asserts that the trial court failed to comply with rule 11 by not advising him that the trial court would not be bound by the parties' sentencing recommendations. See Utah R. Crim. P. 11(g)(2). This presents a question of law that we review for correctness. See Dean, 2004 UT 63 at ¶7. Because this issue was not preserved at the trial court, we address it under a plain error analysis. "To establish plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant." Id. at ¶15 (quotations and citations omitted). Defendant fails to meet the third element. He does not specify how he was prejudiced by the trial court's action and does not claim that if he had been properly advised he would have opted to proceed to trial. And, most tellingly, the trial court followed the sentencing recommendations of the parties. Therefore, the trial court did not plainly err.

    Defendant also asserts that the trial court plainly erred because his plea was involuntary. Under rule 11(e)(2) a court may not accept a guilty plea unless it finds, among other things, that "the plea is voluntarily made." Utah R. Crim. P. 11(e)(2). To meet this requirement, a trial court must do more than simply ask the defendant whether his plea is voluntary. See State v. Valencia, 776 P.2d 1332, 1335 (Utah Ct. App. 1989). Instead, the trial court should make a "specific inquiry" as to the defendant's understanding of his plea. Id. In this case, when Defendant referred to his stress and possible duress, the trial court went to great lengths to inquire about the source of Defendant's stress. Defendant explained that his stress stemmed from other court proceedings setting his child support obligations and his belief that his ex-wife had fraudulently obtained the child support order. In conducting this specific inquiry the trial court determined that the source of the alleged duress was not from threats or outside coercion to enter into a guilty plea, but from a collateral issue that the trial court lacked jurisdiction to address. Accordingly, we conclude that the court did not err, much less commit plain error.

    Lastly, Defendant argues that his trial counsel was ineffective because he violated the duty of loyalty he owed to Defendant. "Where a defendant challenges a guilty plea on grounds of ineffective assistance of counsel, he or she must show a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." Dean, 2004 UT 63 at ¶22 (quotations and citations omitted) (alteration in original). Defendant maintains that his counsel was disloyal in urging the trial court to further inquire into the voluntariness of the guilty plea. To the contrary, the record indicates that trial counsel believed Defendant wanted to plead guilty and therefore wanted to ensure the rule 11 colloquy was conducted correctly so that both Defendant and the trial court would have all of the information necessary to decide whether to plead guilty and whether to accept the guilty plea. Because trial counsel wanted to help his client and the trial court be well informed prior to the guilty plea, there was a logical, tactical reason for trial counsel's actions. There is nothing to indicate that absent trial counsel's complained-of actions, Defendant would have not pleaded guilty and would have proceeded to trial. Thus, Defendant's claim of ineffective assistance of counsel fails.

    Affirmed.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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James Z. Davis, Judge

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William A. Thorne Jr., Judge

1. State v. Hittle, 2002 UT App 134, 47 P.3d 101.