State v. Schubarth

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Michael Richard Schubarth,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040361-CA
 

F I L E D
(April 7, 2005)
 

2005 UT App 166

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Eighth District, Vernal Department

The Honorable John R. Anderson

Attorneys: Bryan D. Sidwell, Vernal, for Appellant

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Greenwood.

DAVIS, Judge:

    Defendant Michael Richard Schubarth appeals his convictions,(1) which were entered as a result of the trial court's determination that he violated the terms of his plea in abeyance agreement with the State. We reverse.

    Defendant argues that the trial court erred by failing to declare a misplea because his plea agreement's six-year abeyance period violates Utah Code section 77-2a-2.(2) See Utah Code Ann. § 77-2a-2(5) (2003) ("A plea shall not be held in abeyance for a period . . . longer than three years if the plea was to any degree of felony or to any combination of misdemeanors and felonies."). Under State v. Moss, 921 P.2d 1021 (Utah Ct. App. 1996), a misplea can be declared when (1) "obvious reversible error has been committed in connection with the terms of the acceptance of the plea agreement," and (2) "no undue prejudice to the defendant is apparent." Id. at 1026 (quotations and citation omitted). As to the second element, if "the defendant is simply placed in the same position as he or she was prior to the guilty plea, there is no undue prejudice to the defendant." Id. at 1027.

    Because Defendant's plea agreement clearly violates section 77-2a-2(5), there was "obvious reversible error . . . committed in connection with the terms of the acceptance of the plea agreement." Id. at 1026 (quotations and citation omitted); see id. at 1023 (holding that the trial court properly vacated the defendant's plea where his plea agreement violated Utah Code section 77-2a-3(7), see Utah Code Ann. § 77-2a-3(7) (2003)). In addition, we conclude that there will be no undue prejudice to Defendant by declaring a misplea.(3) See id. at 1026-27. Accordingly, we conclude that the trial court erred by failing to declare a misplea. Therefore, we remand for entry of a misplea.(4)

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James Z. Davis, Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

1. Defendant's convictions consist of a combination of second and third degree felonies.

2. Defendant now challenges the validity of his plea agreement based upon the six-year abeyance period, even though the abeyance period was lengthened beyond the statutory maximum, in part, for his benefit--i.e., to make his restitution payments realistic and feasible.

3. Indeed, it is Defendant seeking the misplea after actively seeking the plea in abeyance in violation of the statute. Also, since Defendant violated his plea agreement well within the statutory three-year maximum abeyance period, see Utah Code Ann. § 77-2a-2(5) (2003), the State asserts that any error is harmless. However, State v. Moss, 921 P.2d 1021, 1023 (Utah Ct. App. 1996), effectively precludes us from concluding that the error in Defendant's case was harmless.

4. Because our ruling is dispositive of Defendant's appeal, we do not address his remaining arguments. See, e.g., State v. Heaton, 958 P.2d 911, 919 (Utah 1998).