This is an appeal from a denial of a petition for habeas corpus. The companion case of Warner v. Morris, 709 P.2d 309, (1985), is dispositive. In 1981, appellant pleaded guilty to second degree murder.
A party is no more entitled to a perfect plea proceeding than he is to a perfect trial. See Warner v. Morris, Utah, 709 P.2d 309 (1985) (failure to follow letter of Rule 11 does not render plea void). III
We have held that the absence of a finding under this section is not critical so long as the record as a whole affirmatively establishes that the defendant entered his plea with full knowledge and understanding of its consequences and of the rights he was waiving. Brooks v. Morris, Utah, 709 P.2d 310 (1985); Warner v. Morris, Utah, 709 P.2d 309 (1985). In the instant case, defendant has not supplied us with a transcript of the arraignment hearing where he entered his guilty plea or with any other evidence that the court failed to fully explain the consequences of the plea. If an appellant fails to provide an adequate record on appeal, this Court must assume the regularity of the proceedings below.
See also R.Prac.Dist. Cir.Cts. 3.6. Defendant claims the trial court failed to find he understood the nature and elements of the offenses and the possibility of the imposition of consecutive sentences, in violation of subsections 4 and 5 of Rule 11(e). In the companion cases of Warner v. Morris, 709 P.2d 309 (Utah 1985), and Brooks v. Morris, 709 P.2d 310 (Utah 1985), the trial courts substantially followed the litany required by Rule 11(e). In Warner, however, the court failed to ask defendant whether he was aware he had a right against compulsory self-incrimination.
The trial court then witnessed the affidavit previously signed by Dean. The record as a whole thus affirmatively establishes that Dean entered his guilty plea free from threats or promises. Warner v. Morris, 709 P.2d 309 (Utah 1985) (citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). State v. Gibbons had not been decided at the time defendants entered their pleas.
However, this Court has held, "[T]he absence of a finding under [section 77-35-11] is not critical so long as the record as a whole affirmatively establishes that the defendant entered his plea with full knowledge and understanding of its consequences and of the rights he was waiving." State v. Miller, 718 P.2d 403, 405 (Utah 1986); Brooks v. Morris, 709 P.2d 310, 311 (Utah 1985); Warner v. Morris, 709 P.2d 309, 310 (Utah 1985). Following the evidentiary hearing held on the motion to withdraw, Judge Brian made specific findings that Jolivet entered his guilty pleas knowingly and voluntarily.
In cases considered prior to 1987, the Utah Supreme Court held that the record as a whole may affirmatively establish that defendant entered his or her guilty plea with full knowledge and understanding of its consequences and of the rights waived. State v. Miller, 718 P.2d 403, 405 (Utah 1986) (per curiam); Warner v. Morris, 709 P.2d 309, 310 (Utah 1985); Brooks v. Morris, 709 P.2d 310, 311 (Utah 1985) (per curiam). In State v. Gibbons, 740 P.2d 1309 (Utah 1987), however, the supreme court modified its prior decisions and held that the trial court has the burden of ensuring that Rule 11(5) requirements are complied with when a guilty plea is entered.
Prior to 1987, the Utah Supreme Court did not require strict compliance with Rule 11. The court had concluded that a guilty plea may be upheld if "the record as a whole affirmatively establishes that defendant entered his plea with full knowledge and understanding of its consequences." Warner v. Morris, 709 P.2d 309, 310 (Utah 1985) (mem.); see also Brooks v. Morris, 709 P.2d 310, 311 (Utah 1985) (per curiam). This "record as a whole" test was later reaffirmed in State v. Miller, 718 P.2d 403, 405 (Utah 1986) (per curiam).
Prior to our decision in Gibbons, a guilty plea was valid and could not be withdrawn if the trial court demonstrated substantial compliance with Rule 11. See State v. Miller, 718 P.2d 403, 405 (Utah 1986); State v. Kay, 717 P.2d 1294, 1299-1302 (Utah 1986); Warner v. Morris, 709 P.2d 309, 310 (Utah 1985); Brooks v. Morris, 709 P.2d 310, 311 (Utah 1985); State v. Vasilacopulos, 756 P.2d 92, 94-95 (Utah Ct.App. 1988), cert. denied, 765 P.2d 1278 (Utah 1988). In cases decided after Gibbons involving guilty pleas entered before the issuance of Gibbons, we have applied the pre- Gibbons substantial compliance standard.
See State v. Hoff, 814 P.2d 1119, 1123-24 (Utah 1991) ( Gibbons should not be applied to guilty pleas taken before it was issued).Jolivet v. Cook, 784 P.2d 1148, 1149 (Utah 1989) (quoting State v. Miller, 718 P.2d 403, 405 (Utah 1986)); see also Brooks v. Morris, 709 P.2d 310, 311 (Utah 1985); Warner v. Morris, 709 P.2d 309, 310 (Utah 1985). We review the ultimate decision to deny a motion to withdraw a guilty plea under an abuse of discretion standard.