State v. Hale

State v. Hale

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Ricky L. Hale,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040363-CA
 

F I L E D
(June 30, 2005)
 

2005 UT App 305

 

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Second District, Ogden Department, 021902726

The Honorable Michael Lyon

Attorneys: Dee W. Smith, Ogden, for Appellant

Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Orme.

GREENWOOD, Judge:

    Defendant Ricky L. Hale appeals the trial court's denial of his motion to withdraw his admission to allegations that he violated the terms of his plea in abeyance agreement. We affirm in part, reverse in part, and remand.

    First, Defendant asserts that the State breached its agreement that "in exchange for an admission[,] . . . [the State] would recommend no jail time come sentencing." "[W]hen a plea agreement is breached by the prosecutor, the proper remedy is either specific performance of the plea agreement or withdrawal of the guilty plea both at the discretion of the trial judge." State v. Smit, 2004 UT App 222,¶17, 95 P.3d 1203. Because Defendant raises this issue for the first on appeal,(1) we review for plain error. See State v. Dean, 2004 UT 63,¶13, 95 P.3d 276 ("[A]ppellate courts will not consider an issue, including constitutional arguments, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances.").(2)

    "To demonstrate 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 (citation omitted).

    Defendant first argues that the State breached the plea agreement at the show cause hearing by asking the trial court, after Defendant admitted the allegations, to hold Defendant without bail pending sentencing. This was not a breach of the plea agreement, however, because the State did not agree to recommend that Defendant be released on bail pending sentencing; rather, the State agreed only to recommend no jail time "come sentencing." Moreover, even if this were a breach of the plea agreement, this error could not have been obvious to the trial court at this time because the plea agreement was never put on the record or otherwise made known to the trial court until after the show cause hearing--at the hearing on Defendant's motion to withdraw his admission.

    Alternatively, Defendant argues that the State breached the plea agreement at sentencing by objecting to Defendant's request that the trial court follow Adult Probation & Parole's recommendation that Defendant be given credit for time served and released. We agree.

    The trial court committed plain error by not recognizing the breach and providing the appropriate relief--"specific performance of the plea agreement or withdrawal of the guilty plea." Smit, 2004 UT App 222 at ¶17. The trial court was aware of the plea agreement at sentencing because its existence was revealed earlier at the hearing on Defendant's motion to withdraw his plea--during the cross-examination of his original counsel--over which the same judge presided. Thus, the error should have been obvious to the trial court.(3) Defendant was also prejudiced by the error because the thrust of his argument is that but for the plea agreement, which was rendered meaningless by the State's breach and the trial court's failure to hold the State to its bargain, he would not have admitted the allegations against him. See Dean, 2004 UT 63 at ¶22 (observing establishing harmful error "generally requires the defendant's assertion that 'but for' the alleged error, he or she would not have pled guilty.").

    Accordingly, we remand to the trial court to enter the proper remedy for the State's breach of the plea agreement by exercising its discretion to determine whether the circumstances require either specific performance of the plea agreement by the State(4) or the relief Defendant requests--withdrawal of his admission.(5) See Smit, 2004 UT App 222 at ¶17 (observing the trial court has discretion to choose the proper remedy for breach of the plea agreement).

    Defendant also asserts that he received ineffective assistance of counsel at the show cause hearing. Where new counsel represents a defendant on appeal and "the record is adequate to review his claims of ineffective assistance of counsel" on direct appeal, we review "those claims as a matter of law." See State v. Chacon, 962 P.2d 48, 50 (Utah 1998).

    To show ineffective assistance of counsel, as guaranteed by the Sixth Amendment, "a defendant must (i) identify specific acts or omissions by counsel that fall below the standard of reasonable professional assistance when considered at the time of the act or omission and under all the attendant circumstances, and (ii) demonstrate that counsel's error prejudiced the defendant." State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993) (citing Strickland v. Washington, 466 U.S. 668, 690-91 (1984)). "Failure to satisfy either prong will result in our concluding that counsel's behavior was not ineffective." State v. Diaz, 2002 UT App 288,¶38, 55 P.3d 1131.

    Defendant first argues that his counsel at the show cause hearing was ineffective because he failed to adequately discuss the allegations with Defendant. We disagree. Defendant's counsel generally discussed the allegations with Defendant, apprised Defendant of the substance of the allegations, and discussed what strategy to pursue. This assistance was adequate. Although Defendant's counsel did not read each accusation verbatim to Defendant, Defendant has not cited any authority requiring a verbatim reading, and thus, has failed to meet his burden. See Dunn, 850 P.2d at 1225 ("In determining whether counsel's performance is constitutionally deficient, we presume that counsel has rendered adequate assistance."). Moreover, Defendant was not prejudiced by the discussion because Defendant avowed in his colloquy with the trial court, before his admission, that he was familiar with the allegations.

    Defendant next asserts that his counsel was ineffective because he did not view a violation of the plea in abeyance agreement as serious. However, even if this were true, given the number of more serious charges then pending against Defendant, this attitude was appropriate. Focusing Defendant's attention on the more serious charges and having Defendant admit responsibility, in an attempt to receive more lenient treatment, was a valid strategy choice. Cf. Strickland, 466 U.S. at 699 (viewing counsel's decision to rely "as fully as possible on [the defendant's] acceptance of responsibility for his crimes" as a valid strategy choice); see also Dunn 850 P.2d at 1225 (noting an act or omission that "might be considered sound trial strategy" does not demonstrate inadequacy of counsel). Thus, Defendant has failed to meet the first prong of the test, and therefore, this claim fails.

    Defendant's final assertion is that his counsel was ineffective because he failed to put the plea agreement on the record at the show cause hearing. This argument is without merit. Even assuming that this failure was outside the range of professional competence, it did not prejudice Defendant because the trial court was apprised of the plea agreement, before sentencing, at the hearing on Defendant's motion to withdraw his plea. Thus, because the plea agreement was effectively put on the record before the trial court sentenced Defendant, the failure of Defendant's attorney to memorialize it at the show cause hearing did not prejudice Defendant.

    Accordingly, Defendant's claims of ineffective assistance of counsel fail. However, we vacate Defendant's sentence and remand this case for the trial court to fashion a proper remedy because the trial court committed plain error by not curing the State's breach of the plea agreement.

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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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Gregory K. Orme, Judge

1. Although Defendant did file a motion to withdraw his admission, the stated reason was ineffective assistance of counsel, not violation of the plea agreement. Thus, Defendant raises this argument for the first time on appeal.

2. Defendant has not alleged "exceptional circumstances."

3. Interestingly, Defendant does not assert ineffective assistance of counsel on appeal based on his counsel's failure to mention or attempt to enforce the plea agreement at sentencing.

4. We note that if the trial court determines that specific performance of the plea agreement is the proper remedy for the State's breach, the State's recommendation and Defendant's resentencing should take place before a different judge. See Santobello v. New York, 404 U.S. 257, 263 (1971) (indicating where "the circumstances of th[e] case require only that there be specific performance of the agreement on the plea, . . . [the defendant] should be resentenced by a different judge.").

5. Although we reverse on this issue, we note that the trial court made every attempt to permit Defendant to introduce evidence that he claimed would prove that he complied with the plea in abeyance agreement. For example, the trial court permitted Defendant to post bail, provided he could make bail on other unrelated charges, to retrieve the evidence from his home in Reno, Nevada. On another occasion, after denying Defendant's motion to withdraw his admission, the trial court scheduled sentencing to provide Defendant another opportunity to obtain the exculpatory evidence. Nonetheless, Defendant never produced the evidence.