State of Utah v. Smith

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State v. Smith. Filed November 12, 1999 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


Shawn Michael Smith,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981010-CA

November 12, 1999

  1999 UT App 332


Fifth District, Cedar City Department
Honorable Robert T. Braithwaite

Dale W. Sessions, Cedar City, for Appellant
Jan Graham and Catherine M. Johnson, Salt Lake City, for Appellee


Before Judges Greenwood, Davis, and Jackson.


Appellant appeals an order of the district court denying his motion to withdraw his guilty plea. We affirm.

Appellant asserts for the first time on appeal that his trial counsel was ineffective in that he failed to make "any sort of investigation into the facts surrounding the break-in and robbery." An ineffectiveness of counsel claim can be raised for the first time on appeal only in limited circumstances, i.e., when there is new counsel on appeal and there is an adequate trial record. SeeState v. Humphries, 818 P.2d 1027, 1029 (Utah 1991). Although appellant has new counsel on appeal, the trial record is inadequate to allow our consideration of the ineffectiveness claims. The "record provides us with none of the facts necessary to establish whether counsel's alleged omissions constitute ineffective assistance of counsel." State v. Vessey, 967 P.2d 960, 964-65 (Utah Ct. App. 1998). Specifically, there is no record to establish that there exist additional facts that trial counsel failed to uncover that would have helped appellant's cause.(1) Because appellant's ineffectiveness claims rely on alleged evidence that is not part of the record, we decline to reach the issue.

Appellant next asserts, also for the first time on appeal, that the trial court failed to strictly comply with Rule 11(e) in taking his plea. Specifically, appellant contends that neither the plea affidavit nor the court's colloquy informed appellant of the elements of the crime, nor of the maximum penalty therefor. This court may not address issues raised for the first time on appeal, including alleged Rule 11(e) violations, unless the appellant asserts either plain error or exceptional circumstances. See State v. Jennings, 875 P.2d 566, 570 (Utah Ct. App. 1994). Because appellant has failed to assert either plain error or exceptional circumstances, we decline to address appellant's Rule 11(e) challenges.


Pamela T. Greenwood,
Associate Presiding Judge

James Z. Davis, Judge

Norman H. Jackson, Judge

1.Appellant did not request a remand under Utah Rule of Appellate Procedure 23B for the purpose of entering findings of fact relevant to a claim of ineffectiveness of counsel.  Although the rule allows this court to order a remand sua sponte, our discretion is limited to those circumstances where the motion
would have been available to a party.  See Utah R. App. P. 23B(a).  Appellant has not made a sufficient allegation of nonspeculative facts that would support a determination that counsel was ineffective.  See Vessey, 967 P.2d at 965 n.5 (stating remand unavailable where defendant alleges no facts to support claims or identifies no facts potentially helpful to case).  Because the motion would not be available to appellant, we decline to order a remand.