Opinion
Case No. 20050514-CA.
Filed April 27, 2006. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, 011914468, The Honorable Leslie A. Lewis.
Jennifer K. Gowans, Provo, for Appellant.
Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee.
Before Judges Davis, McHugh, and Orme.
MEMORANDUM DECISION
Richard Fitting Jr. appeals his convictions for three counts of sodomy on a child, first degree felonies. The State concedes that trial counsel was ineffective and that the case should be remanded for further proceedings.
In separate proceedings on Fitting's petition for post-conviction relief, the parties agreed that it would be in the interest of justice to permit Fitting to pursue a withdrawal of his guilty plea if he chooses to do so with the assistance of appointed counsel and to restore his right to appeal. The district court granted Fitting's petition for post-conviction relief in its Order Re: Resentencing Nunc Pro Tunc. The court adopted the parties' stipulation, vacated its prior order denying Fitting's pro se motion to withdraw his guilty plea, and allowed Fitting to withdraw both that motion and his prior attempts to appeal. The order also provided that Fitting would be sentenced nunc pro tunc to the same terms previously imposed, stating: "Sentencing will occur thirty (30) days following the date of entry following this Order or thirty (30) days following this Court's ruling on any properly filed post-trial Motion to Withdraw Guilty Plea, if such Motion is timely filed, whichever date is later."
Based upon an apparent misunderstanding of the resolution of the post-conviction petition, Fitting's appointed counsel in this case incorrectly represented to the district court at resentencing that there was a then-pending motion to withdraw Fitting's guilty plea, which the district court summarily denied. Counsel filed a notice of appeal, seeking to appeal both the denial of the motion to withdraw Fitting's guilty plea and the conviction and sentence.
The State concedes that the case should be remanded to the district court so Fitting may proceed with a motion to withdraw his guilty plea while represented by counsel. The State further concedes that counsel was ineffective for telling the court that a motion to withdraw the plea was pending when no motion was actually pending. Counsel's performance was deficient because counsel did not understand the procedural posture of Fitting's case. Although Fitting may, after consultation with counsel, have elected not to file a motion to withdraw, the record does not reflect that this occurred. The previous motion to withdraw Fitting's guilty plea and the ruling thereon had been withdrawn pursuant to the stipulation in the post-conviction proceeding. Accordingly, there was no preservation of the issues, and no record, that would allow this court to review any ground for a motion to withdraw.
The State requests that this case be remanded to the district court to allow Fitting to proceed with a motion to withdraw his guilty plea, if he chooses, while represented by counsel. If a motion to withdraw is denied, or if no motion to withdraw is filed prior to resentencing, Fitting shall then be resentenced nunc pro tunc in accordance with the district court's prior resolution.
We reverse the judgment, sentence, and conviction, and remand the case to the district court for further proceedings consistent with this decision.
James Z. Davis, Judge, Carolyn B. McHugh, Judge and Gregory K. Orme, Judge, concur.