Opinion
Case No. 20010700-CA.
Filed November 28, 2003. (Not For Official Publication)
Appeal from the Second District, Ogden Department, The Honorable W. Brent West.
Dee W. Smith, Ogden, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and Orme.
MEMORANDUM DECISION
Defendant Jackie Carroll Guinn appeals his conviction for sexual abuse of a child, in violation of Utah Code Annotated section 76-5-404.1(1) (1999), a second-degree felony. We affirm.
Guinn argues a letter sent by him to the court prior to sentencing was a timely motion to withdraw his plea. Guinn pleaded no contest to one count of sexual abuse of a child. Prior to sentencing, Guinn sent a letter to the trial court judge requesting sentencing according to a lesser included offense or dismissal of the action. At sentencing, neither Guinn nor his counsel suggested Guinn's letter to the court was a motion to withdraw his plea. Guinn was sentenced and subsequently filed an appeal. We granted a stipulated motion for remand to allow the trial court to determine if it received Guinn's letter and, if so, whether it should be construed as a timely motion to withdraw the plea.
At a hearing pursuant to our order, the trial court determined the letter he received from Guinn was not a motion to withdraw his plea but merely an expression of his innocence and a request that the court place him on probation. While a letter from a pro se defendant to withdraw a guilty plea may be considered a motion, see State v. Canfield, 917 P.2d 561, 561-62 (Utah Ct.App. 1996) (per curiam); cf. Acosta v. Labor Comm'n, 2002 UT App 67, ¶ 6, 44 P.3d 819 (noting the petitioner "filed another pro se motion, in the form of a letter"); State v. Vessey, 967 P.2d 960, 961 (Utah Ct.App. 1998) (referring to a pro se motion as a letter), construing this letter as a motion to withdraw plea is inconsistent both with the letter's stated purpose and Guinn's testimony at sentencing.
The letter stated: "So I'am [sic] asking that you consider a lesser charge or a lesser included offense of gross lewdness, . . . a dismissel [sic]." We conclude the trial court properly interpreted the letter as an expression of Guinn's innocence and request for leniency in sentencing and not as a motion to withdraw his plea. Further, on remand, Defendant presented no additional evidence of any motion to withdraw his guilty plea. Therefore, we affirm.
WE CONCUR: James Z. Davis, Judge, and Gregory K. Orme, Judge.