State v. Robison

State v. Robison

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

James L. Robison,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030189-CA
 

F I L E D
(January 13, 2005)
 

2005 UT App 9

 

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Fourth District, Nephi Department

The Honorable Donald J. Eyre Jr.

Attorneys: Milton T. Harmon, Nephi, for Appellant

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Thorne.

DAVIS, Judge:

    James L. Robison appeals the trial court's denial of his motion to withdraw his guilty plea to one count of issuing a bad check. See Utah Code Ann. § 76-6-505 (2003).(1) We reverse.

    Robison generally argues that the trial court erred by failing to comply with rule 11 of the Utah Rules of Criminal Procedure when it accepted his guilty plea. Specifically, Robison asserts that his plea does not constitute an admission of all of the elements of the offense of issuing a bad check. See Utah Code Ann. § 76-6-505. We do not necessarily disagree with the dissent's conclusion that Robison did not adequately present this issue either to the trial court or to this court. However, to avoid a "great and manifest injustice," we will reach this issue sua sponte as an exception to the preservation rule. State v. Pierce, 655 P.2d 676, 677 (Utah 1982) (per curiam) (stating that appellate court can reach an issue sua sponte as an exception to the preservation rule if a "great and manifest injustice" would otherwise occur); see also State v. Archambeau, 820 P.2d 920, 923 n.5 (Utah Ct. App. 1991) (citing Pierce and noting parenthetically that "court can entertain an exception sua sponte if facts reveal 'great and manifest injustice' would otherwise occur" (quoting Pierce, 655 P.2d at 677)). We agree with Robison that his conviction is based upon a guilty plea that does not contain an admission to all the elements of the offense of issuing a bad check. See Utah Code Ann. § 76-6-505. In good conscience, we cannot affirm Robison's conviction of a crime that, according to the plea colloquy, he did not commit.

    Rule 11 provides, in relevant part, that a trial court may not accept a defendant's guilty plea until the court has found that the plea is an admission of all the elements of the offense to which the plea is entered. See Utah R. Crim. P. 11(e), (e)(4)(A). One of the required elements of issuing a bad check under section 76-6-505 is that the defendant must issue a bad check "for the purpose of obtaining from any person, firm, partnership, or corporation, any money, property, or other thing of value." Utah Code Ann. § 76-6-505(1), (2). We conclude that this element of section 76-6-505 requires a substantially contemporaneous exchange.

    During Robison's plea colloquy, Robison admitted that he issued a bad check. However, when the trial court specifically asked Robison whether it was correct that the vehicle was delivered to him "in exchange for" the bad check, Robison replied, "No. The car was delivered several weeks prior to [issuance of the bad check]."(2) We conclude that this statement represents a complete defense to the charge of issuing a bad check under section 76-6-505, because it establishes that there was not a substantially contemporaneous exchange--i.e., because Robison received the vehicle several weeks prior to issuing the bad check, he did not issue the bad check "for the purpose of obtaining" the vehicle. Id. The check was irrelevant to the transaction involving the sale of the vehicle and simply amounted to payment on an open account. See Howells, Inc. v. Nelson, 565 P.2d 1147, 1149 (Utah 1977) (holding that a bad check issued for payment on a past due account for goods already received did not constitute an exchange for property because the payee was "not induced to give anything of value, nor was it in any way cheated or adversely affected by the giving of the check").(3)

    Because Robison's guilty plea was not an admission of all the elements of the offense of issuing a bad check, see Utah Code Ann. § 76-6-505, we conclude that the trial court erred by accepting his plea and by denying his subsequent motion to withdraw his plea. Accordingly, we reverse the trial court's denial of Robison's motion to withdraw his guilty plea and remand for a trial.

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James Z. Davis, Judge

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I CONCUR:

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Judith M. Billings,

Presiding Judge

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THORNE, Judge (dissenting):

    James Robison pleaded guilty to issuing a bad check and admitted facts sufficient to establish each element of that crime. Robison's appellate arguments to the contrary are inadequately briefed, lack any reasoned analysis or citation to relevant case law, and shift the burden of research and analysis to this court. I would reject them on that basis. See Utah R. App. P. 24; State v. Sloan, 2003 UT App 170,¶13, 72 P.3d 138. Further, I see no injustice to Robison in this matter and must respectfully dissent from the majority opinion.

    The majority opinion concludes that, as a legal matter, Robison did not admit to a factual basis for the crime of issuing a bad check because, at his plea hearing, he admitted only to writing a check "on an existing debt" and that the truck in question had been delivered "several weeks prior to" the issuance of the check. Generally speaking, Utah law provides that the writing of a check on a past due account for goods already received does not constitute an exchange "for the purpose of obtaining . . . any money, property, or other thing of value," see Utah Code Ann. § 76-6-505 (2003), because the payee is "not induced to give anything of value, nor [is he] in any way cheated or adversely affected by the giving of the check." Howells, Inc. v. Nelson, 565 P.2d 1147, 1149 (Utah 1977). However, in the context of Robison's plea hearing, it is clear that Robison's answers provided the trial court with a factual basis upon which to accept his guilty plea.

1. Robison's Factual Admissions at the Plea Hearing

    At his plea hearing, Robison never asserted that he had an open account with his victim, nor did he or his counsel ever alert the judge to any potential conflict between Robison's admitted conduct and the statutory language. To the contrary, Robison admitted in writing at the plea hearing that he was aware of and understood the "for the purpose of obtaining property" element of the bad check charge and that there was a factual basis for that element. Robison waived his right to have the State prove each element of the offense to a jury beyond a reasonable doubt, both in writing and orally on the record. Based on these and other admissions and waivers, the trial court accepted Robison's guilty plea.

    The majority opinion relies in part on Robison's assertion at the plea hearing that his check was issued to pay "on an existing debt." Robison's statement to this effect occurred outside the formal factual basis colloquy and prior to his decision to plead guilty to a crime, his decision of what crime to plead to, and his written admission of factual guilt of the bad check charge. When Robison made the "existing debt" comment, he still had the right to present inconsistent theories or defenses.(1) The trial court was under no obligation to consider such inconsistencies once Robison decided to plead guilty to the bad check charge and proceeded with the formal plea process, including submitting his formal factual admissions as required by Rule 11.

    At the plea hearing, prior to the trial court's acceptance of his plea, Robison signed a statement in support of plea. He adopted this statement on the record. The typed statement had handwritten corrections to reflect the last-minute change from a no contest plea to a guilty plea, although some typed references to a no contest plea remained. Corrected to reflect Robison's actual plea of guilty, the statement contained the following admissions:

I have received a copy of the (Amended) Information against me. I have read it, or had it read to me, and I understand the nature and the elements of crime(s) to which I am pleading [guilty] or no contest.

The elements of the crime(s) to which I am pleading [guilty] are:

Count I: That I, JAMES L. ROBISON, on or about September 11, 2001, in Juab County, State of Utah, did issue a check for the payment of money for the purpose of obtaining property knowing that it would not be paid by the drawee and payment was refused.

I understand that by pleading guilty, I am not contesting that I committed the foregoing crimes. I stipulate and agree that if I am pleading guilty, I do not dispute or contest that the following facts describe my conduct . . . . These facts provide a basis for the court to accept my [guilty] plea and prove the elements of crime(s) to which I am pleading [guilty]:

On or about September 11, 2001, in Juab County, State of Utah, I issued a check for the payment of money for the purpose of obtaining property knowing that it would not be paid by the drawee and payment was refused.

(Emphases added.) The trial court expressly asked Robison if he had any questions about this written statement, and, except for a restitution matter, he did not. The court proceeded to question Robison about his plea decision and, upon satisfying itself that Robison was acting knowingly and voluntarily, accepted his plea of guilty.

    After accepting the plea, the trial court conducted the following colloquy to establish its factual basis:

The Judge: Factual basis, Mr. Leavitt?

[Prosecutor] Mr. Leavitt: Your honor, on the date set forth in the Information this defendant, James L. Robison, issued a check or a draft a, in exchange for something of value at a time when the account upon which it was written was closed, and the amount exceeded $5,000.

Defendant: That is not a correct statement, Your Honor.

The Judge: What is a correct statement, Mr.--

Defendant: Well, I have a letter from the . . . . The correct statement is that account was not closed, the--

The Judge: Well--

Defendant: --payment was not, was not honored by the bank but the account was not closed. I have a letter in my file from the institution stating that it was open.

The Judge: Okay. You, you did issue a check which was not honored by your bank. Is that correct?

Defendant: That's correct.

The Judge: And a, upon notice of it not being honored did you, did you at any time make that check good?

Defendant: I attempted to, Your Honor, and my bonding company also attempted to, but we were not able to completely do it.

The Judge: Okay. And a, in exchange for that a car was delivered. Is that correct? A vehicle was--

Defendant: No. The car was delivered several weeks prior to that.

The Judge: Well, I mean--

Defendant: There was a vehicle in, a transaction did involve a vehicle.

The Judge: Yes. Okay. And that vehicle had a value in excess of $5,000?

Defendant: It did, Your Honor.

Based on this colloquy, the trial court found that there was a factual basis for Robison's guilty plea.

2. Robison's Admissions Alone Support His Plea

    There is nothing in Robison's written or oral statements at the plea hearing, and certainly nothing in the formal factual colloquy, to establish a factual or legal defense to a bad check charge. While alleging a short delay between physical delivery of the truck and his issuance of the check, Robison failed to allege that the victim was not "cheated or adversely affected by the giving of the check." Howells, Inc. v. Nelson, 565 P.2d 1147, 1149 (Utah 1977). As detailed later in this opinion, the record as a whole reflects that the victim had retained legal title to the truck and was only induced to provide it to Robison upon the issuance of the bad check. Even assuming the trial court could not consider this record evidence for purposes of accepting Robison's plea, Robison's failure to deny cheating or adversely affecting the victim, his admission of a transaction involving the truck, and his factual admission of his "purpose of obtaining property" provide more than enough factual basis to satisfy Rule 11.(2)

    Even if the sole factor to be considered was the passage of time, there is no precedent establishing that a delay between receipt of property and issuance of a check automatically precludes a bad check conviction. To the contrary, in State v. Bartholomew, the Utah Supreme Court affirmed a bad check conviction resulting from the issuance of a check one week after the receipt of stock shares by the defendant. See 724 P.2d 352, 352 (Utah 1986). I see no meaningful distinction between the one week delay implicitly approved in Bartholomew and the "several weeks" delay(3) asserted by Robison in the fact colloquy. So long as there is, as Robison admitted at his plea hearing, but a single "transaction," I do not view the delay in this matter as falling outside the legislature's intention or the rule set forth in Howells. See 565 P.2d at 1149. Any distinction that might be drawn certainly fails to give rise to "great and manifest injustice" as relied upon by the majority opinion.(4)

3. The Record as a Whole Demonstrates Facts Placing Robison's Actions Squarely Within the Purview of the Bad Check Statute

    As stated above, I would hold that Robison's plea has adequate factual support solely from the facts admitted at the plea hearing. However, given the majority's decision to examine Robison's claims under the "great and manifest injustice" standard, it is appropriate to examine the remainder of the record to fill in the details of the transaction underlying Robison's plea. Those details reveal a very different version of events than those argued by Robison on appeal. And, unlike this court, the trial court was well aware of the complete context of Robison's actions from various pretrial pleadings and the in-court testimony of the victim at a prior motion hearing.(5)

    Robison and his victim had never met prior to the truck transaction, and there were no prior vehicle transactions between the two. Robison first contacted the victim by phone(6) around the end of July 2001 to request the victim's assistance in selling a separate vehicle. In mid-August, Robison again spoke with the victim seeking to locate a suitable truck for a potential buyer. The victim located the truck through his wholesaler network and ordered it for Robison.

    Robison took physical possession of the truck on approval for his customer on September 1, 2001. That same day, Robison informed the victim that his customer was interested in buying the truck, and the victim agreed to send Robison the title and paperwork(7) once Robison provided a check. On September 11, the victim contacted Robison about payment, and Robision agreed to send the victim a check, which he did. The victim only sent, i.e., was "induced to give," Robison title to the truck after Robison issued a bad check in payment. Howells, 565 P.2d at 1149.

    These supporting facts strongly suggest that Robison's issuance of a bad check was not merely substantially but actually in exchange for title to, rather than mere physical possession of, the truck. If Robison believed that these or other facts conflicted with the legal elements of a bad check charge, he should have expressly raised the issue at the trial court level. Had he done so, the facts could have been sifted and justice assured. Doing this type of analysis at the appellate level, without the benefit of trial court 'fact sifting,' is problematic.

CONCLUSION

    For these reasons, even assuming that the relevant time period is the ten-day delay between Robison's initial physical receipt of the truck and his issuance of a bad check, I would affirm the trial court. Under my reading of Utah law, the court was justified in accepting Robison's plea solely based on his admissions that he had issued a check that had not been honored, that the check was issued in a transaction involving the recent receipt of a truck, and that the truck had a value in excess of $5,000. The record further indicates that Robison issued the check prior to and in exchange for the title and other paperwork that established legal transfer of ownership of the truck to Robison.

    I see no injustice, great or otherwise, in holding Robison to his guilty plea and would accordingly affirm the trial court's denial of Robison's motion to withdraw.

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William A. Thorne Jr., Judge

1. Because this statute has not changed since Robison was charged and convicted, we cite to the most recent version for convenience.

2. During Robison's plea colloquy, he also characterized his issuance of the check as payment "on an existing debt."

3. The dissent recognizes this principle from Howells, Inc. v. Nelson, 565 P.2d 1147, 1149 (Utah 1977), but then proceeds to rely upon cases from other jurisdictions to support the proposition that a "short delay" between the receipt of goods and the issuance of a check may still satisfy the exchange requirement. We are not persuaded by the dissent's reliance upon these cases that turn on their unique facts.

The dissent also relies upon State v. Bartholomew, 724 P.2d 352 (Utah 1986), in which the Utah Supreme Court affirmed a defendant's conviction for issuing a bad check when the defendant issued the check one week after receiving stock shares. See id. at 352, 355. However, Bartholomew does not specifically address the issue of a substantially contemporaneous exchange, but instead focuses upon whether a thing of value was received. See id. at 354-55. We are equally unpersuaded by the dissent's reliance upon Bartholomew.

1. See State v. Mitcheson, 560 P.2d 1120, 1122 (Utah 1977) ("[The State's burden of proof] gives the defendant the benefit of every defense thereto which may cause a reasonable doubt to exist as to his guilt, arising either from the evidence, or lack of evidence, in the case; and this is true whether his defenses are consistent or not." (emphasis added) (citations omitted)).

2. Given Robison's written and oral admissions over the course of the plea hearing, I am also inclined to find that Robison is estopped from raising the factual basis argument on appeal. The elements of equitable estoppel are: "(1) an admission, statement or act inconsistent with the claim afterwards asserted, (2) action by the other party on the faith of such admission, statement or act, and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act." Department of Human Servs. v. Irizarry, 945 P.2d 676, 680 (Utah 1997). Each of these elements is arguably present in this matter.

3. The record reveals an actual delay of ten days between Robison taking physical possession of the truck and his writing a bad check in payment for it.

4. State v. Bartholomew, 724 P.2d 352 (Utah 1986), did not explicitly address the contemporaneous exchange requirement, but the failure of the supreme court to identify and address the issue suggests that it would not find Robison's situation to be one of manifest injustice.
    Other states addressing this issue have expressly concluded that a short delay between the receipt of goods and the issuance of a check may still satisfy the exchange requirement:

Where a worthless check is given as payment for goods already received, there is no present consideration, and a conviction for criminal issuance of a bad check must be reversed unless "the interval [between delivery of goods or services and payment therefor] is slight and the exchange can be characterized as a single contemporaneous transaction."

Ledford v. State, 362 S.E.2d 133, 134 (Ga. Ct. App. 1987) (emphasis added) (alteration in original) (citations omitted); see also State v. Platt, 845 P.2d 815, 817 (N.M. Ct. App. 1992) (holding that "a worthless check is given for something of value if the worthless check is issued as part of a contemporaneous transaction between the parties in which something of value is exchanged for the check, without regard to whether the thing of value is delivered before or after the worthless check is issued"). Ledford addressed a payment by check one day after the receipt of goods, see 362 S.E.2d at 133-34, while in Platt the defendant issued a bad check fourteen days after the receipt of goods and services. See 845 P.2d at 816. Both cases found their particular facts sufficient to support a bad check conviction under a single contemporaneous transaction standard. See also Gilley v. State, 356 S.E.2d 655, 656 (Ga. Ct. App. 1987) (finding contemporaneous transaction where work completed on Friday and check delivered the following Monday).

5. The contextual facts recited in this section of the opinion are taken from pleadings and exhibits filed in this action, seeking to determine proper possession of the truck as between competing third party claimants. At the hearing on this dispute, the victim in this matter gave extensive testimony about the facts, circumstances, and timing of the truck transaction.

6. The victim testified that he spoke with Robison four or five times on the phone prior to September 1, 2001.

7. Exhibits to prior pleadings demonstrate that title to the truck was not even issued to the victim, and thus could not have been transferred to Robison, until September 5, 2001. Similarly, the sales contract contemplated a cash sale of the truck to Robison on September 11 for $40,812.