State v. Worthen

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Scott G. Worthen,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20030722-CA

F I L E D

(March 17, 2005)
 

2005 UT App 135

 

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Second District, Ogden Department

The Honorable Michael D. Lyon

Attorneys: John T. Caine, Ogden, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Thorne.

BILLINGS, Presiding Judge:

    Scott G. Worthen (Defendant) appeals the trial court's denial of his motion to withdraw his guilty plea to one count of attempted forcible sexual abuse. See Utah Code Ann. § 76-5-404 (2004). Defendant also argues that he was denied effective assistance of counsel. We affirm.

    Defendant argues that the trial court erred by denying his motion to withdraw his plea because Defendant was unaware that he would likely be denied probation if he entered a no contest plea,(1) and thus, he did not agree to the plea knowingly and voluntarily. "We review a trial court's denial of a motion to withdraw a guilty plea under an abuse of discretion standard." State v. Lehi, 2003 UT App 212,¶7, 73 P.3d 985 (quotations and citations omitted), cert. denied, 78 P.3d 987 (Utah 2003).

    Utah Rule of Criminal Procedure 11(e)(5) requires the trial court to make sure that a "defendant knows the minimum and maximum sentence . . . that may be imposed for each offense to which a plea is entered." Utah R. Crim. P. 11(e)(5). Defendant concedes that the trial court complied with rule 11(e)(5) by informing him of the range of possible sentences that could result from his plea. Nonetheless, Defendant claims that he should have been informed of the likelihood that the trial court would choose one of the sentencing options, namely probation. Rule 11 simply does not require the trial court to inform a defendant of such probabilities. Utah courts are not required under rule 11 to inform a defendant of "'every collateral consequence of [a] plea.'" State v. Smit, 2004 UT App 222,¶29, 95 P.3d 1203 (alteration in original) (citations omitted). However, if the trial court chooses to inform a defendant about a collateral consequence, it must do so correctly. See State v. Rojas-Martinez, 2003 UT App 203,¶¶7-8, 73 P.3d 967, cert. granted, 80 P.3d 152 (Utah 2003). Thus, the trial court did not abuse its discretion by denying Defendant's motion to withdraw his plea.

    Defendant also argues that he was denied effective assistance of counsel because his counsel did not inform him that he was unlikely to receive probation. Criminal defendants who are subject to jail time have a right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate ineffective assistance of counsel, "the defendant must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Id. Prejudice is measured by whether there would have been a reasonable probability of a different result "sufficient to undermine confidence in the outcome." Id. at 694. Defendant does not claim that had trial counsel informed him of the likelihood of probation, he would not have entered into the plea. Thus, we cannot say that there is a reasonable probability of a different result. For this reason, Defendant's ineffective assistance of counsel claim fails. See State v. Frame, 723 P.2d 401, 405 (Utah
1986) (suggesting disposal of ineffective assistance of counsel claim for lack of prejudice when possible).

    We affirm.

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Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. Whether Defendant entered a no contest plea or an Alford plea, see North Carolina v. Alford, 400 U.S. 25 (1970), is disputed and unclear from the record, but ultimately it is immaterial to the resolution of this appeal.