Opinion
Case No. 20030139-CA.
Filed March 18, 2004. (Not For Official Publication).
Appeal from the Second District, Ogden Department, The Honorable Pamela G. Heffernan.
Randall W. Richards, Ogden, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Davis, Greenwood, and Thorne.
MEMORANDUM DECISION
Gordon Walls (Defendant) appeals the trial court's denial of his motion to withdraw his guilty plea. Defendant first argues that the trial court erred by finding that he was competent at the time the plea was made. Defendant further argues, for the first time on appeal, that the trial court failed to comply with rule 11(e) of the Utah Rules of Criminal Procedure because (1) Defendant did not truly understand the nature and value of the promise made to him by the prosecutor in the plea negotiations, and (2) Defendant's plea was not voluntary because he was mentally ill when he entered it. We affirm.
"We review a trial court's denial of a motion to withdraw a guilty plea under an `abuse of discretion' standard." State v. Holland, 921 P.2d 430, 433 (Utah 1996) (citation omitted). However, "whether the trial court strictly complied with constitutional and procedural requirements for entry of a guilty plea is a question of law that is reviewed for correctness." Id.
At the hearing on Defendant's motion to withdraw his guilty plea, after stipulation by the parties, the trial court ordered two mental evaluations to assess Defendant's competency. Later, a third evaluation was ordered with a focus on Defendant's competency at the time he pleaded guilty.
Based in large part on these evaluations, the trial court found that Defendant was malingering and that the guilty plea was knowingly and voluntarily entered. Defendant has not marshaled the evidence supporting these findings, nor has he demonstrated that the evidence is insufficient to support them. See State v. Robertson, 932 P.2d 1219, 1223-24 (Utah 1997). Moreover, our own examination of the evidence presented in the hearing on Defendant's motion to withdraw the plea has revealed no insufficiency. Therefore, we conclude there was no abuse of discretion in the trial court's determination.
Defendant next argues that the trial court did not strictly comply with the requirements of rule 11(e) of the Utah Rules of Criminal Procedure by better explaining the effect of the prosecutor's promise. However, by not raising this rule 11 argument before the trial court in the context of his motion to withdraw plea, Defendant failed to preserve it for appeal. "When a party fails to preserve an issue for appeal, we will nevertheless review the issue if the appealing party can demonstrate plain error or exceptional circumstances." State v. Hansen, 2002 UT 114, ¶ 21 n. 2, 61 P.3d 1062.
Defendant asserts plain error by the trial court. "To succeed on a claim of plain error, a defendant has the burden of showing (i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." State v. Hittle, 2002 UT App 134, ¶ 5, 47 P.3d 101 (alteration in original) (quotations and citations omitted). After reviewing the record of the plea hearing, we conclude that the trial court did not err in its rule 11 colloquy with Defendant. Additionally, even if an error had existed in the trial court's questioning about Defendant's understanding of the plea agreement, "such error would not have been obvious to the court when considering the motion to withdraw guilty plea." State v. Richins, 2004 UT App 36, ¶ 11 n. 3, 493 Utah Adv. Rep. 26. Accordingly, we hold that this argument was not properly preserved for appeal and there was no plain error.
Defendant also appears to claim the trial court violated rule 11 of the Utah Rules of Criminal Procedure by taking Defendant's guilty plea when he was mentally ill. Because there was no abuse of discretion by the trial court in determining that Defendant was not mentally ill at the time he entered his plea, but instead was malingering in his interactions with the court appointed therapists, we need not address this issue further. Moreover, the record of the plea hearing indicates no violation of rule 11 with regard to Defendant's mental health.
Because the trial court correctly ruled that Defendant was competent when he entered his guilty plea, and because Defendant failed to preserve his second issue for appeal, we affirm the trial court's denial of Defendant's motion to withdraw his guilty plea.
James Z. Davis, Judge and William A. Thorne Jr., Judge, Concur.