Opinion
Case No. 20040134-CA.
Filed June 3, 2005.
Appeal from the Third District, Salt Lake Department, 021910838, The Honorable Robin W. Reese.
Margaret P. Lindsay, Orem, and Patrick V. Lindsay, Provo, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Billings, Greenwood, and Jackson.
MEMORANDUM DECISION
Kevin R. Blanke appeals the trial court's denial of his motion to withdraw his guilty plea, claiming he received ineffective assistance of counsel at the motion hearing. We affirm.
Blanke asserts that he has been twice subject to ineffective assistance of counsel. He claims that his attorney at the plea hearing, Michael Peterson, incorrectly advised him that the State possessed DNA evidence against him and, further, that if he pleaded guilty he could later raise a statute of limitations argument on appeal. After entering a guilty plea, Blanke then moved to withdraw his plea on grounds that Peterson provided ineffective assistance of counsel. During the motion hearing, Blanke claims that Julie George, his new attorney, failed to call Blanke as a witness and did not introduce into evidence his signed affidavit. The trial court denied his motion to withdraw and now, on appeal, Blanke claims the trial court's denial should be reversed because George also deprived him of effective assistance of counsel. This is an issue which we review for correctness. See State v. Rojas-Martinez, 2003 UT App 203, ¶ 5, 73 P.3d 967.
"`[A]n individual has been denied the effective assistance of counsel if: (1) counsel's performance was deficient below an objective standard of reasonable professional judgment, and (2) counsel's performance prejudiced the defendant.'" Id. at ¶ 6 (citation omitted). The prejudice requirement is met with "a showing `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at ¶ 11 (citation omitted). The second prong is determinative in this case.
First, we agree with the trial court that any incorrect representation by Peterson regarding Blanke's right to appeal his statute of limitations claim would be remedied by the trial court's colloquy at the plea hearing. See State v. Dean, 2004 UT 63, ¶ 12, 95 P.3d 276 ("When reviewing the trial court's denial of a defendant's motion to withdraw a guilty plea, the reviewing court may consider the record of the plea proceedings, including the plea colloquy. . . ."). At that hearing Blanke stated he understood that his guilty plea would preclude any such appeal. This, combined with the fact that at the motion hearing George adequately summarized the evidence on this issue and read into evidence a letter from Peterson to Blanke, leads us to conclude that Blanke's personal testimony or affidavit would likely not have changed the outcome.
The following exchange took place during the September 15, 2003 plea hearing:
THE COURT: If you plead guilty today, Mr. Blanke, you're giving up your right to challenge that, right to appeal; in other words, once you plead guilty today, you'll no longer be able to — to argue that the statute of limitations has run, that the State can't prosecute you. Do you understand that?
MR. BLANKE: Yes.
THE COURT: Are you willing to give up the right to file that appeal or to make that challenge?
MR. BLANKE: Yes, your Honor.
At the motion hearing George read into evidence the relevant portions of a letter sent from Peterson to Blanke after the plea hearing to clarify his counsel regarding the statute of limitations claim.
Blanke disagrees with this conclusion and refers us to State v. Rojas-Martinez, 2003 UT App 203, for the proposition that an attorney's affirmative misrepresentation regarding the consequences of a guilty plea supercedes the court's clarifications made during the plea colloquy. However,Rojas-Martinez does not state such a broad rule. In that case, the defendant's attorney misadvised the defendant that if he pleaded guilty he "might not" be deported. Id. at ¶¶ 2, 11. At the plea hearing, the court conducted a plea colloquy with the defendant, but the facts indicate that the court did not discuss the possibility of deportation, see id. at ¶ 3, which is not required as part of the colloquy, see Utah R. Crim. P. 11(e). After the plea colloquy, the defendant pleaded guilty, was sentenced, and moved to withdraw his guilty plea. See Rojas-Martinez, 2003 UT App 203 at ¶¶ 3-4. The court held that because the defendant was made to rely on his attorney's affirmative misrepresentation regarding the effect of his guilty plea, he had not received effective assistance of counsel. See id. at ¶¶ 10-11. Given these facts, Rojas-Martinez does not cause us to alter our conclusion in Blanke's case, where the court specifically explained to Blanke in the plea colloquy that he would not be able to appeal the statute of limitations claim.
Second, we consider Blanke's assertion that at the motion hearing George failed to present Blanke's signed affidavit and to call him as a witness to support his claim that Peterson had misinformed him about the State's DNA evidence. At the motion hearing, George summarized the contents of Blanke's affidavit for the court, stating that on November 5th, [Blanke] was concerned that Mr. Peterson had misled him about the DNA, misled him about the discovery, misled him about the nature of the case and[,] therefore, had duped him into taking the plea against his best interest.
That on November 11th, he wrote Michael Peterson to ask for the DNA evidence report and that that had not been provided to him.
And then he also asks in the petition to ask if he can have DNA evidence tested and any information that was not tested, or any evidence not tested, if he could ask the court to test that.
The judge then reiterated Blanke's argument in detail, stating
[Blanke's] attorney told him that the State had some evidence, there had been DNA tests performed on the victim . . . that tied him to the crime.
That, before he entered the guilty plea, he received police reports or whatever evidence may have been turned over to him, but he didn't have a chance to read it before he entered the plea; however, at some point, he read did read those documents. He determined for himself that in fact, his attorney had lied to him, that there was no such evidence that the State had available, no DNA testing. And therefore, he now feels that he's been duped by his attorney, which Ms. George has said, and wishes to withdraw the guilty plea.
We conclude that these statements by counsel and the judge indicate that Blanke's evidence was sufficiently before the court. Blanke did not proffer any additional facts at the hearing and has not done so on appeal. Thus, to the extent that he claims additional facts exist, he has failed to identify them, thereby rendering the record "inadequate to enable us to consider this claim." State v. Bradley, 2002 UT App 348, ¶ 65, 57 P.3d 1139 (refusing to consider claim of ineffective assistance of counsel when defendant "does not offer any evidence about who [the] potential witnesses are or what their testimony would entail"). Accordingly, we cannot conclude that Blanke's personal testimony or a verbatim reading of the affidavit would have, with reasonable probability, caused the trial court to grant Blanke's motion.
We note that during the hearing, George offered Blanke the opportunity to present any evidence she had overlooked. After summarizing Blanke's position, the following dialogue ensued:
THE COURT: Did you have anything further counsel?
MS. GEORGE: I have nothing further unless my client (inaudible — coughing) for the record. Is there anything else you want to submit supporting that?
MR. BLANKE: Those papers.
George then summarized Blanke's affidavit, as described above. The record, however, never indicates that Blanke sought to admit his personal testimony.
On appeal, Blanke bears the burden of assuring the trial record is adequate, see State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92, and may move to include any "nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective," Utah R. App. P. 23B(a).
We affirm.
WE CONCUR: Judith M. Billings, Presiding Judge, Pamela T. Greenwood, Judge.