State v. Mendez

State v. Mendez

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Carlos Mendez,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030617-CA
 

F I L E D
(September 16, 2004)
 

2004 UT App 319

 

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Second District, Ogden Department

The Honorable Michael D. Lyon

Attorneys: Randall W. Richards, Ogden, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

PER CURIAM:

    Carlos Mendez appeals from the trial court's denial of his motion to withdraw his guilty plea to a charge of riot, a third degree felony.

    A trial court's denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. See State v. Benvenuto, 1999 UT 60,¶1, 983 P.2d 556. A defendant must show good cause in order to be able to withdraw a guilty plea. See Utah Code Ann. § 77-13-6(2)(a) (1999).(1) Good cause exists if the plea was entered involuntarily. See State v. Humphrey, 2003 UT App 333,¶10, 79 P.3d 960.

    Mendez argues that his plea was involuntary because he could not understand the value of the plea agreement without the police reports. For a plea to be voluntarily and knowingly made, a "defendant must understand the nature and value of any promise made to him." State v. Copeland, 765 P.2d 1266, 1274 (Utah 1988). If a defendant pleads guilty based on "'an exaggerated belief in the benefits of his plea . . . he should be allowed to withdraw his plea.'" State v. Norris, 2002 UT App 305,¶10, 57 P.3d 238 (alteration in original) (quoting Copeland, 765 P.2d at 1275). Pleas based on illusory or misleading promises generally will not be considered voluntary. See Copeland, 765 P.2d at 1275.

    A trial court may not accept a guilty plea unless the court determines it was voluntarily and knowingly made. See Utah R. Crim. P. 11(e); Benvenuto, 1999 UT 60 at ¶11. Strict compliance with rule 11 "creates a presumption the plea was entered voluntarily." Humphrey, 2003 UT App 333 at ¶10 (quotations and citation omitted). A defendant may overcome the presumption "by putting forth evidence that the plea was in fact involuntary." Id.; see also, Benvenuto, 1999 UT 60 at ¶22 (noting defendant failed to offer "substantial evidence to rebut the conclusion that his plea was voluntary").

    Mendez's argument that his plea was involuntary because he did not understand the value of the State's promise fails. Implicit in Mendez's argument is that the police reports would show insufficient evidence to charge Mendez with murder, thus making the promise not to charge murder worthless. However, nothing in the record indicates what the police reports actually contain. Mendez provides no support for the implication that the State lacked sufficient evidence to charge him with murder.

    Mendez acknowledges that the plea colloquy under rule 11 was complete. As a result, the presumption is that his plea was indeed voluntary. See Humphrey, 2003 UT App 333 at ¶10. It is Mendez's burden to put forth evidence to overcome that presumption. See Benvenuto, 1999 UT 60 at ¶¶13,22. Mendez offers only speculation and fails to provide "substantial evidence to rebut the conclusion that his plea was voluntary." Id. at ¶22.

    Mendez also argues that his counsel was ineffective based on counsel's failure to provide him with the requested police reports. To establish ineffective assistance of counsel, a defendant must show that "counsel's performance was deficient below an objective standard of reasonable professional judgment," and that "counsel's performance prejudiced the defendant." State v. Martinez, 2001 UT 12,¶16, 26 P.3d 203 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). To show prejudice in the context of a guilty plea, a defendant "must show that there is a reasonable probability that, but for counsel's error[], he would not have pleaded guilty and would have insisted on going to trial." Id. at ¶17. Here, even if Mendez could show error, he cannot show prejudice in the circumstances of this case.

    It is Mendez's burden to provide an adequate record for review. See State v. Litherland, 2000 UT 76,¶¶16-17, 12 P.3d 92. If the record appears inadequate, "ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively." Id. at ¶17. Mendez's assertion that he would not have pleaded guilty if he had received the police reports is unsupported by the record. It is entirely speculative that the police reports would show a lack of evidence sufficient to charge Mendez with murder, particularly given the broad sweep of Utah's accomplice liability statute. See Utah Code Ann. § 76-2-202 (2003). Absent anything in the record to the contrary, this court presumes that the police reports would support a murder charge against Mendez, and thus would not change his plea. Mendez fails to show he was prejudiced by any alleged error of counsel.

    Accordingly, we affirm the trial court's denial of Mendez's motion to withdraw his plea.

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. This section was amended effective May 2003. See Utah Code Ann. § 77-13-6 (2003).