State of Utah v. Soules

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Wayne Jay Soules,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981311-CA

F I L E D
December 30, 1999
  1999 UT App 391 -----

Eighth District, Vernal Department
The Honorable John R. Anderson

Attorneys:
Wesley M. Baden, Vernal, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Jackson.

JACKSON, Judge:

Soules appeals from guilty pleas to one count of possession of a controlled substance, methamphetamine, with intent to distribute, and one count of possession of a controlled substance, amphetamine, with intent to distribute. See Utah Code Ann. § 58-37-8 (Supp. 1999). Soules entered a conditional guilty plea, expressly reserving the right to appeal the trial court's denial of his motion to suppress evidence. See State v. Sery, 758 P.2d 935, 938-40 (Utah Ct. App. 1988). He now argues (1) the trial court erred when it denied him substitute appointed counsel and (2) the trial court failed to make adequate findings of fact when it denied his motion to suppress. We affirm.

By pleading guilty, Soules waived all nonjurisdictional defects, "including alleged pre-plea constitutional violations." State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989); accord James v. Galetka, 965 P.2d 567, 570-71 (Utah Ct. App. 1998). "Examples of such nonjurisdictional issues that may be waived by a guilty plea 'involve[] . . . a number of important rights, including the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination.'" James, 965 P.2d at 571 (alterations in original) (quoting Salazar v. Warden, Utah State Prison, 852 P.2d 988, 991 (Utah 1993)). Soules does not challenge the knowing and voluntary nature of his guilty plea. Further, he does not argue that his challenge is based on a jurisdictional defect.(1) Thus, we will not address his contention that the trial court should have appointed substitute counsel.

Soules next argues the trial court's findings of fact were insufficiently detailed to support its denial of Soules's motion to suppress. When findings of fact on a particular issue do not appear on the record, "'we "assume that the trier of [the] facts found them in accord with its decision, and we affirm the decision if from the evidence it would be reasonable to find facts to support it."'" State v. Robertson, 932 P.2d 1219, 1224 (Utah 1997) (alteration in original) (quoting State v. Ramirez, 817 P.2d 774, 787 (Utah 1991) (citation omitted)).

In this case, Soules's parole officer had the authority to ask Soules questions. See Minnesota v. Murphy, 465 U.S. 420, 432, 104 S. Ct. 1136, 1144 (1984) (stating "the nature of probation is such that probationers should expect to be questioned on a wide range of topics relating to their past criminality").(2) The parole officer asked Soules whether he had been using drugs, and Soules admitted that he had. This admission gave the parole officer the reasonable suspicion necessary to perform a warrantless search. See State v. Davis, 965 P.2d 525, 529 (Utah Ct. App. 1998). We thus conclude the trial court correctly denied Soules's motion to suppress.

Accordingly, we affirm Soules's convictions.
 
 
 

______________________________
Norman H. Jackson, Judge

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I CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge

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DAVIS, Judge (concurring):

The warrantless search conducted by the parole officer had little, if anything, to do with the charges to which defendant entered his Sery plea. See State v. Sery, 758 P.2d 935, 938-40 (Utah Ct. App. 1988). The drugs which were the subject matter of the charges resulting in the plea were discovered while defendant was booked into jail.

Based on defendant's involvement in the assault and his admission to his parole officer that he had been using drugs, the parole officer was justified in taking defendant into custody "on a 72 hour hold," and it is well settled that contraband discovered during the booking process is admissible. SeeState v. Maestas, 815 P.2d 1319, 1323 (Utah Ct. App. 1991) (holding, "piece of glass taken from defendant's pocket as part of an inventory search during booking was legally seized, and was properly admitted as evidence") (citation omitted).
 
 
 
 

______________________________
James Z. Davis, Judge

1. Instead, he merely asserts that if the alleged error were jurisdictional, it could not be waived. We agree. However, Soules has not cited any legal authority to indicate that this is the case.

2. When evaluating searches of probationers and parolees similar considerations typically apply to each group. See State v. Davis, 965 P.2d 525, 529 n.2 (Utah Ct. App. 1998) (citing 4 Wayne R. LaFave, Search and Seizure § 10.10(c), at 767-69 (3d ed. 1996)).