Opinion
Case No. 20060377-CA.
Filed May 10, 2007. Not For Official Publication.
Fifth District, St. George Department, 051500556 The Honorable James L. Shumate.
Attorneys: Margaret P. Lindsay and Julia Thomas, Orem, for Appellant.
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.
Before Judges McHugh, Orme, and Thorne.
MEMORANDUM DECISION
As the State concedes, Defendant's pro se letter to the trial court constituted a timely motion to withdraw his guilty pleas. Even though the trial court improperly concluded that no such motion was filed, the trial court did hear argument and factual proffers on the underlying issue and essentially ruled on the matter at the sentencing hearing, albeit without making any factual findings. Defendant essentially contends that he rebutted the presumption of voluntariness by presenting evidence that his plea was not entered voluntarily, which required "the [trial] court . . . to assess the credibility of the evidence and make detailed findings on all relevant facts." State v. Humphrey, 2003 UT App 333, ¶ 10, 79 P.3d 960. See Utah R. Crim. P. 12(e) ("Where factual issues are involved in determining a motion, the court shall state its findings on the record."). While the better practice is to make detailed findings in any event, the trial court was not technically required to make factual findings in this case because Defendant did not make even a minimal showing that he entered his guilty pleas involuntarily. See Humphrey, 2003 UT App 333 at ¶ 10. Thus, the presumption of voluntariness stands. See id.
At the sentencing hearing, the trial court considered Defendant's letter to the court, statements from Defendant, representations from Defendant's then-attorney, and representations from the attorney for the State.
Defendant was very clear at the sentencing hearing that the gravamen of his concern was his other attorney's advice that he "was not to plead to anything that I didn't do." And "the only thing" he focused on in this regard was that he "didn't force anybody to do anything. . . . That's the only thing I want to contest." As a matter of law, Defendant's theory simply does not undercut the voluntariness of his plea. He admitted having sex with both underage girls and to the other facts surrounding the events. Misunderstanding the term "forcible" in this statutory context, he mistakenly thought that he could only be convicted of forcible sexual abuse if he had physically forced the two girls to have sex with him. This is not the law in Utah. See Utah Code Ann. §§ 76-5-404(1), -406(11) (2003).
Consistent with applicable law, the plea agreement did not state that Defendant physically forced the girls to have sex with him. Rather, it accurately cited the elements of forcible sexual abuse, see id. § 76-5-404(1), and unlawful sexual activity with a minor, see id. § 76-5-401(1)-(2), neither of which require actual physical force. Further, the plea agreement set out the facts supporting the charges, none of which indicated that Defendant physically forced himself on the girls. In essence, Defendant demonstrated that he misunderstood a term in the statute under which he was charged, but this misunderstanding caused no harm to Defendant as his oft-admitted actions fell squarely within the statutes under which he was charged.
Turning to Defendant's argument that the trial court abused its discretion when it entered consecutive sentences without considering all the statutorily mandated factors, we initially note that three of Defendant's tactical decisions essentially precluded the trial court from meeting its responsibilities under the applicable statute. See id. § 76-3-401(2). First, Defendant refused to cooperate with Adult Probation and Parole in obtaining a pre-sentence report. As a result, the trial court did not have a pre-sentence report to consider at the sentencing hearing. Second, neither Defendant nor his counsel requested a continuance at the sentencing hearing to allow a pre-sentence report to be prepared. Third, Defendant did not proffer any information at the sentencing hearing when the trial court specifically asked him if there was any other information Defendant wanted the trial court to consider.
Because the only statutory factor the trial court failed to take into account is that of Defendant's personal history, his role in this regard cannot be overstated. Indeed, the trial court was deprived of an opportunity to review Defendant's history because of decisions made by Defendant and his counsel. By these actions, and having never objected to the imposition of sentence on the ground of inadequate information about his history being available to the trial court, Defendant clearly waived his right to argue for the first time on appeal that the trial court did not consider his history in imposing sentence upon him.See State v. Pinder, 2005 UT 15, ¶¶ 45-46, 114 P.3d 551 (discussing preservation rule's requirement that "a timely and specific objection . . . be made in order to preserve an issue for appeal" and that "the purpose of [this] rule is to ensure that the trial court is first given an opportunity to decide if a mistake has been made before appellate review becomes appropriate"); In re Discipline of Alex, 2004 UT 81, ¶ 21 n. 2, 99 P.3d 865 ("[A] party is said to `waive' a claim on appeal if that claim was not preserved in the trial court[.]").
Affirmed.
Carolyn B. McHugh, Judge, William A. Thorne Jr., Judge, WE CONCUR.