Opinion
Case No. 2:OOCV226B
October 16, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is Donald York's (the "petitioner") petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. Petitioner asks this Court to set aside his guilty pleas for second degree murder and attempted manslaughter, Petitioner alleges that his guilty pleas should be set aside because he did not receive effective assistance of counsel, as guaranteed by the Sixth Amendment, that his pleas were not entered knowingly and voluntarily, that the trial court and trial counsel failed to fully investigate petitioner's state of mind at the time of the crime, and that petitioner was not competent at the time he entered the guilty pleas.
Background
On June 17, 1984, petitioner purchased an airline ticket using the name Dan Hill and flew from San Bernardino, California to Salt Lake City, Utah. York v, Shulsen, 875 P.2d 590, 592 (Utah Ct.App. 1994), Upon arrival, petitioner rented a car using the name Donald York and drove to his ex-wife, Patricia York's ("Patricia"), home in Bountiful, Utah. Id. Armed with a loaded gun, petitioner entered Patricia's home and fired twelve to fourteen shots, seriously wounding Patricia and killing her boyfriend, Jeff Longhurst ("Jeff). Id.
Petitioner refers to the alter egos of "Dan Hill" and "Dan Hell." They are, apparently, the same alter Person.
Petitioner then drove to the Bountiful police station and surrendered. Id. He told police that a fight had broken out at Patricia's house. Id. Petitioner also told police where to find the gun and ammunition, and said he was going to hell for what he had done and would no longer be a member of his church. Id.
Petitioner was charged with first degree murder, a capital offense, in violation of Utah Code Ann. § 77-14-3 (1990); attempted second degree murder, a second degree felony in violation of Utah Code Ann. § 76-5-203 (1979) and 76-4-102 (1983); and aggravated burglary, a first degree felony in violation of Utah Code Ann. § 76-6-203 (1973), York, 875 P.2d at 592. The petitioner "tendered a notice of defense claiming that he was not guilty by reason of insanity or that he had diminished mental capacity at the time the offense occurred." Id. The trial court appointed Dr. Chris Ghicadus, M.D., a psychiatrist, and Dr. Heber C. Kimball, Ph.D., a psychologist, of the Davis County Mental Heath Center to "examine the defendant and investigate his mental condition." Id. After examining petitioner, both doctors independently opined that while petitioner had mental disorders, they were not so severe as to render petitioner legally insane. Id. Dr. Ghicadus' expert report further indicated that petitioner was "mentally competent to understand trial proceedings and would be able to assist in his defense." Id. Dr. Kimball's expert report indicated" no medical history or evidence of any fugue or dissociative states which would have reduced his [petitioner's] capacity to control his impulses at the time of the alleged crime," Id. Additionally, Dr. Kimball reported those validity indicators on written tests administered to petitioner, indicated that petitioner may be "faking `bad' and faking sick" by "exaggerating any symptoms that he may have." Kimball Psych. Eval. p. 1. Dr. Ghicadus also indicated a "lack of a true psychiatric condition." Ghicadus Psych. Eval. p. 5.
Dr. Ghicadus specifically found that these disorders did not interfere with petitioner's everyday life. Id. Dr. Ghicadus' report also stated, "[t]here is further nil evidence of a psychosis or other mental process that would make him so seriously unstable as to not be able to make a decision about his behavior." Id. at 4-5.
On October 29, 1985, petitioner, pursuant to a plea agreement, pled guilty to the reduced charges of second degree murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (1979), and attempted manslaughter, a third degree felony, in violation of Utah Code Ann, § 76-5-205 (1985). York, 875 P.2d at 592. In addition to these reduced charges, the state agreed to recommend concurrent sentences and to forego seeking a sentencing enhancement for use of a firearm. At the plea hearing, the defendant stated he had no independent memory of the shootings, but he did admit that he committed the crimes to which he intended to plead guilty. Id. The trial court read the charges to petitioner, confirmed he understood them, explained the possible sentences, and apprized him of his rights, including his right to a jury trial. The trial court asked petitioner if he had the benefit of legal counsel in entering the plea and confirmed petitioner was satisfied with the advice of his legal counsel. Finally, the trial court found that petitioner knowingly and voluntarily entered a guilty plea and executed the plea agreement.
On December 6, 1984, petitioner was sentenced to a term of five-years-to-life for second degree murder and to a consecutive term of zero-to-five years for attempted manslaughter. Findings of Fact July 16, 1991 p. 2. Petitioner did not file a direct appeal of his conviction and sentence.
Petitioner was released from the Utah State Prison on January 8, 2002.
While in prison, petitioner was under the treatment of prison psychiatrist, Dr. Alma Carlisle, who formed the opinion that petitioner suffered from multiple personality disorder ("MPD"). On April 2, 1985, petitioner filed a state petition for writ of habeas corpus contending that the new evidence of his MPD showed that he was not guilty of the crimes to which he had previously pled guilty. Specifically, petitioner alleged that through a series of hypnotic sessions in the state prison, petitioner had contacted his alter personality, Dan Hell. Dan Hell told Dr. Carlisle that on the date in question an unidentified red-haired man (seen by Dan Hell, but no other witness) killed Jeff and attempted to kill Patricia.
The petition included the following claims: (1) trial counsel erred in failing to obtain all pertinent information to determine petitioner's state of mind at the time of the crime; (2) trial court failed to follow the original doctors' recommendation for further testing of petitioner; (3) trial court erred by failing to decide if petitioner's withdrawal of his proposed insanity defense was knowing and voluntary; and (4) trial court failed to comply with Rule 11, of the Utah Rules of Criminal Procedure, in accepting the plea. Report and Recommendation p. 5.
This reference to a "recommendation" by doctors Ghicadus and Kimball refers to their statements to the Utah trial court at the time they made their formal reports to the court that additional testing would be helpful to develop a more informed medical opinion to explain Mr. York's alleged memory lapse. These suggestions were not viewed by the doctors as necessary to complete their work to determine defendant's legal competency and sanity. The record reflects that the doctors' reports with respect to those assigned responsibilities were final when submitted by the doctors and both concluded that petitioner was both legally sane at the time of the crime and legally competent to understand the charges against him and assist in his defense.
In February 1990, Dr. Alan Jeppson, M.D., an expert, was appointed by the trial court to evaluate petitioner's mental state at the time the plea was entered. York, 875 P.2d at 593. An evidentiary hearing was held on July 3, 1991 in which Dr. Jeppson and Dr. Carlisle testified. On July 16, 1991, the trial court having fully considered both doctors' testimony dismissed the petition finding that although petitioner suffered from MPD at the time of his crime and guilty pleas, he was in fact competent to plead guilty. The trial court's finding reflected the testimony of Dr. Carlisle who had diagnosed petitioner's MPD through several hypnosis sessions at the prison.
Petitioner appealed. The dismissal was affirmed by the Utah Court of Appeals in York v. Shulsen, 875 P.2d 590 (1994). Petitioner sought certiorari from the Utah Supreme Court. On September 19, 1994, certiorari was denied. Therefore, petitioner's claims were fully considered on the merits in the state court system, that included an extensive evidentiary hearing with various witnesses.
Petitioner filed his first federal habeas petition on November 3, 1994. York v. Smith, Case No. 94-C-1075. It included a number of additional claims not previously raised in the state courts. This petition was dismissed without prejudice on October 5, 1995 to allow petitioner to exhaust his state court remedies. Id. Docket No. 21-1. On October 23, 1995, petitioner filed a second state habeas petition which he voluntarily withdrew on August 29, 1996.
Next, petitioner filed a motion to set aside his guilty pleas in state district court on August 28, 1996. On August 13, 1997, the state trial court held an evidentiary hearing in which several witnesses testified. After considering the testimony entered into evidence, the trial court denied petitioner's motion to withdraw his guilty pleas. In reaching this decision, the court considered the fact that a complete competency hearing had been held in an earlier state court proceeding in which it was determined that petitioner was competent to enter a guilty plea. In making its determination of competency, that court considered the fact that additional psychological testing for the purpose of determining petitioner's memory loss had not been completed and that petitioner had subsequently been diagnosed with MPD. However, that court had considered the fact that Dr. Carlisle, the prison psychologist that diagnosed petitioner with MPD, testified that petitioner, as well as Dan Hell, would be able to understand the nature of the crime committed and assist his attorney in his defense. Accordingly, the court found the earlier court's consideration of the facts sufficient for the purposes of ruling on petitioner's motion to set aside his guilty pleas.
The Utah Court of Appeals affirmed the state district court's decision on September 24, 1998, Petitioner's request for rehearing was summarily denied on October 22, 1998. Petitioner then filed a petition for certiorari with the Utah Supreme Court. This petition posed the following questions: (1) what is the court's responsibility when court ordered doctors request additional testing to determine state of mind and cause of memory loss, as required for an insanity defense; (2) does defense counsel have a duty to investigate when the court ordered doctors request additional mental testing; (3) does failure to conduct further investigation by either the court or defense counsel to determine petitioner's state of mind deny petitioner his due process and constitutional rights to a fair trial; (4) did defense counsel make sufficient inquiry and take sufficient precautions before abandoning a defense of insanity or diminished capacity; (5) did the trial court make sufficient inquiry and follow criteria for a voluntary plea; and (6) were the trial court and court of appeals correct in ruling that petitioner's guilty plea was substantially in compliance with the criteria for pre-Gibbons' guilty pleas. On February 11, 1999, certiorari was denied.
Petitioner then filed a second federal habeas petition on March 24, 1999. This petition was dismissed without prejudice for failure to exhaust state remedies on January 31, 2000 by an order which adopted a report and recommendation issued by the magistrate judge. York v. State of Utah, 99-CV-0196, Docket Entry 25-1. Petitioner filed a reply challenging the recommendation of the magistrate judge. United States Senior District Court Judge David Sam, considered the same petition de novo and, after reviewing petitioner's objections, found the report and recommendation "correct in every material respect" and signed another order adopting the report and recommendation as the court's own opinion thereby dismissing the petition for failure to exhaust administrative remedies. Id. Docket entry 26-2.
On February 18, 2000, petitioner attempted to file a petition for writ of certiorari in the Utah Supreme Court, On February 24, 2000, the court sent petitioner a letter advising him that his petition was being refused as untimely. The court's letter also advised petitioner that the Federal District Court Order, which stated that two of petitioner's claims were not included in his earlier petition for certiorari filed on November 20, 1998, did not change the fact that the Utah Supreme Court had no jurisdiction to consider his subsequent untimely petition for certiorari.
On March 14, 2000, petitioner filed his third and current petition for writ of habeas corpus with this Court which is the subject of this Opinion. Under the rule set forth in Duncan v. Henry, the petition was thirty-two days late. Due to the untimeliness of the petition, this Court denied the habeas petition on August 28, 2001, Petitioner appealed to the Tenth Circuit Court of Appeals for a certificate of appealability ("COA") to appeal from this Court's order of dismissal. On June 28, 2001, the Tenth Circuit Court of Appeals granted petitioner a COA vacating the dismissal and requesting this court to review petitioner's habeas corpus claims on the merits. This Court now reviews petitioner's habeas corpus petition on the merits.
Standard of Review
Because petitioner filed the current § 2254 habeas corpus petition in 2000, it is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999). Under AEDPA, "a state prisoner will be entitled to federal habeas corpus relief only if he can establish that a claim adjudicated by the state courts `resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A Federal District Court reviewing a determination of fact made by a State court in a 28 U.S.C. § 2254 habeas corpus petition presumes the State court to be correct. 28 U.S.C. § 2254 (e)(1) 1994 (Supp. 2003). The appellant has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id. With these standards in mind, the Court views petitioner's claims in light of the fact that on two separate occasions the state court considered these claims and held evidentiary hearings to consider facts that formed the basis of their respective rulings. Moreover, each of these rulings were affirmed by state courts of appeal. Finally, the highest court of the State of Utah twice denied the invitation to review the lower courts' actions.Analysis
Petitioner, in his habeas petition, alleges the following violations of his constitutional rights:
(1) Petitioner did not receive effective assistance of counsel as guaranteed him through the Sixth Amendment of the United States Constitution; (2) Petitioner's trial counsel was burdened by a conflict of interest and failed to provide effective assistance of counsel; (3) [The] trial court and Petitioner's trial counsel failed to fully investigate Petitioner's state of mind at the crime by not having doctors pursue the additional psychological and psychiatric testing doctors requested to determine Petitioner's state of mind at time of crime and criminal responsibility, as needed for Petitioner's insanity defense; (4) Trial court made no attempt to determine if Petitioner's plea was voluntary; (5) Petitioner's plea was not knowing and [the] plea hearing record does not contain necessary facts showing Petitioner understood the nature and elements of the crimes he plead guilty to; nor does the record demonstrate facts that would substantiate probability the prosecution of case at trial; (6) There is a substantial probability that Petitioner was not competent at the time he entered his plea; and Habeas Court finding petitioner competent, nunc pro tunc, seven years after the fact, when no competence hearing had been held by trial court, is reversible error.
Habeas Pet p. 5.
I. Ineffective Assistance of Counsel
Petitioner's allegations of violations of his constitutional rights arise out of petitioner's October 29, 1985 entry of plea hearing. The Court has reviewed the transcript of this hearing, as well as the August 13, 1997 evidentiary hearing in which all of petitioner's allegations were fully considered and found to be without merit. The Court has also reviewed and incorporates by reference the transcripts of the two previously mentioned hearings as well as the Utah Court of Appeals case affirming the trial court's decision.
Petitioner alleges that his Sixth Amendment right to effective assistance of counsel was violated because trial counsel: (1) failed to pursue additional psychological evaluations; and (2) had alleged conflicts of interest. To successfully assert an ineffective assistance of counsel claim, petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 690-691 (1984), "To establish deficient performance, a petitioner must demonstrate that counsel's representation `fell below an objective standard of reasonableness.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) quoting Strickland, 466 U.S. at 668. The proper measure of attorney performance is "simply reasonableness under prevailing professional norms." Id.
A. Reasonableness of trial counsel's defense strategy
Claims of ineffective assistance of counsel raise mixed questions of law and fact. See, Hale v. Gibson, 227 F.3d 1298, 1314 (10th Cir. 2000); Smith v. Gibson, 197 F.3d 454, 461 (10th Cir. 1999), Mixed questions of fact and law are reviewed de novo, granting great deference to the trial court's underlying findings of fact. Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000), In reviewing allegations of ineffective assistance of counsel, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland v. Washington, 466 U.S. 668, 690-691 (1984), In deciding whether additional investigation is necessary, "[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id.The state court, in considering petitioner's motion to withdraw guilty plea, found that trial counsel acted reasonably in not conducting additional psychological testing for the purpose of determining petitioner's memory loss prior to petitioner entering a guilty plea because the evidence showed he was legally sane and competent. This finding was based on the following facts.
Prior to trial and the entering of a guilty plea, the court appointed two independent mental health experts to evaluate petitioner's mental condition. York, 875 P.2d at 592. Both experts opined that petitioner was neither insane nor incompetent. Id, Dr. Ghicadus, a psychiatrist employed by the Davis County Mental Health Center, found that petitioner was "not `insane' in a legal sense." Id. Dr. Ghicadus also concluded that petitioner was "mentally competent to understand trial proceedings and would be able to assist in his defense." Id. Independently, Dr. Kimball, a psychologist employed by the Davis County Medical Health Center, stated that petitioner showed "no signs of psychosis, illogical thinking, delusions or hallucinations" and that his "train of thought appeal[ed] to be normal." Id.
At the change of plea hearing held on October 29, 1985, trial counsel made the following statement:
[A]s the court's aware, Mr. York was charged with the Capital Homicide, an offense which we have advised him could result in either life imprisonment, or ah, the death penalty, or an acquittal, or a conviction of some lesser charge, whether it was a separate charge or lesser included offense.
In addition to that charge, Mr. York recognizes that he is charged with an attempted, a Second Degree Murder, which is in fact a Second Degree Felony and we have explained to him the consequences of that offense.
For sometime now the County Attorney's Office and myself have been involved in exploring a resolution of this case which resolution would in fact, we believe, do justice based on the facts of the situation, ah, and all those parties involved.
The resolution, Your Honor, that we have, or we propose to do today, which I believe is in my client's best interests, and I believe in the interest of justice and I believe substantiated and corroborated by the facts, is Mr. York's tendered plea of guilty to the amended information, alleging Second Degree Murder, a First Degree Felony, and Attempted Manslaughter, a Third Degree Felony.
We have explained to Mr. York that he has the right to go to trial. He has the right to have the State prove beyond a reasonable doubt those essential elements of the offense. He has the right further to hear those that accuse him and the evidence, and has the right to present evidence on his behalf.
We are fully well prepared to proceed that way, but in all honesty, I've told Mr. York that I believe the facts would result in his conviction of at least a Manslaughter, and an attempted Manslaughter, And the facts may well, ah, lead, if tried, to a conviction of Second Degree or First Degree Murder. And it was at that recognition that Mr. York desires to enter a plea of guilty.
Further, Your Honor, it's part of the negotiations with the County Attorney's Office that the information which I have reviewed, contained in the allegations, or averments, of the use of a weapon. And the County Attorney's Office specifically makes no representations concerning the use of a weapon on which a trier of fact, and we respectfully, for the Court sitting as the trier of fact, could find. And the reason for that is obvious. It's both parties' intent that the Court not, ah, be required to imply in the sentencing provisions which say the Court shall impose another one year consecutive sentence.
Further, Your Honor, it's my understanding that the State will not impose, and in fact would concur ultimately in the Court imposing concurrent sentences. Ah, and as we have told Mr. York, those are sentences which would, ah if the Court in its discretion should choose to sentence that way, would not result in one sentence being served commencing on the other sentence.
Mr. York is fully aware that should Your Honor allow the amended information and Mr. York's plea to it, the Court's not bound at all, ah, in its prerogative to sentencing. The Court could leave out the full sentence that the statute prescribes, or such other punishment as the Court in its power deems appropriate.
Ah, again, I have strong feelings that regardless of the success of the trial, that Mr. York, based on the facts, could not have a more favorable resolution of this matter than the potential sentences than what in fact is tendered by the County Attorney's Office today.
Change of Plea Hearing pp. 2-4.
Additionally, petitioner was asked by the trial court if he was happy with the representation that trial counsel provided. Petitioner replied, "Very much so, yes." Change of Plea Hearing p. 8.
The record is clear regarding the reliability of the doctor's opinions considered by the court and the efficacy of petitioner's trial counsel Two independent doctors found that petitioner was competent to enter his guilty plea, trial counsel conversed with the trial court judge at the plea hearing regarding the facts, the relevant medical evidence, the relevant law, the elements of the charges, and trial counsel's theory of the case. The petitioner himself stated at the plea hearing that he was very happy with the efficacy of the counsel provided. The trial court found that trial counsel acted reasonably under the circumstances. Giving the appropriate deference to the trial court's finding that petitioner did receive effective assistance of counsel, and in considering trial counsel's and petitioner's statements reflected in the transcripts, this Court finds that trial counsel did thoroughly investigate the facts and the law in this case and that trial counsel's decision not to pursue an insanity defense or additional psychological testing did not fall below the objectively reasonable standard to which he was held.
In the reasonable judgment of petitioner's counsel, and petitioner himself, who was found to be competent to understand and assist in his own defense, the plea bargain offered by the state was a desirable resolution of the case. Petitioner was facing the real possibility of a death sentence, and this proposal represented not only the elimination of that consequence, but also gave petitioner the hope for an opportunity to receive a prison sentence that would allow him to be released and once again be a free member of society, a consequence that in fact occurred in 2002 when petitioner was released from the Utah State Prison. Under the circumstances, the strategic choices made by petitioner's trial counsel were clearly within the range of reasonable professional judgment. Accordingly, the Court finds that petitioner's trial counsel employed a reasonable and effective representation of petitioner's interests in this case.
B. Conflict of Interest
As a threshold issue, this Court must first determine whether petitioner has exhausted state remedies with respect to all claims presented to the federal court. 28 U.S.C. § 2254 (b)-(c). Claims in which state remedies have not been exhausted will not be reviewed by this Court "unless it is affirmatively shown that resort to [state remedies] would be useless." Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992), cert. denied, 506 U.S. 924 (1992).
State remedies are deemed to be exhausted if either: (1) a state remedy is no longer available; or (2) all the claims asserted in the federal petition have been presented to the highest state court either on direct appeal from his conviction or in a state post-conviction proceeding. Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1054, 1059 (1989). In the instant case, petitioner raises claims in his current petition for writ of habeas corpus which were not raised in his petitions for writ of certiorari in the Utah Supreme Court. Specifically, petitioner's claims that allege a conflict of interest by trial counsel and that the court determined his competency nunc pro tune seven years after the fact have not been presented to the Utah Supreme Court for review. These claims, however, are realistically exhausted because a state remedy is no longer available due to the fact that they would be procedurally barred as untimely. "Where the reason a petitioner has exhausted his state remedies is because he has failed to comply with a state procedural requirement for bringing the claim, there is a further and separate bar to federal review, namely procedural default." Parkhurst v. Shillinger, 128 F.3d 1366, 1368 (10th Cir. 1997). Petitioner's failure to raise the above mentioned issues before the Utah Supreme Court constitutes a procedural bar in terms of federal habeas review. See Harris v. Reed, 489 U.S. 2255, 261 (1989).
Procedural default can only be overcome if petitioner demonstrates either: (1) cause for the default and prejudice as a result; or (2) a fundamental miscarriage of justice would result from the failure to entertain the claim. Banks v. Reynolds, 54 F.3d 1508, 1514 (10th Cir. 1995).
To meet the "cause" standard, the petitioner must show that some objective factor external to the defense interfered with his compliance with the state procedural rules. Maes v. Thomas, 46 F.3d 979, 987 (10th Cir. 2995). Defendant makes no such argument.
The fundamental miscarriage of justice exception applies only when a constitutional violation probably has resulted in the conviction of one actually innocent of a crime and petitioner supplements his constitutional claim with a colorable showing of factual innocence. Herrera v. Collins, 113 S.Ct. 853(1993).
In the instant case, petitioner asserts actual innocence, Petitioner alleges that although he confessed to the shooting death of one person and attempted murder of another and plead guilty to the associated charges, he is in fact, not guilty. Petitioner bases these claims on the fact that while in prison, he was diagnosed with MPD, and it was discovered-through hypnosis-that alter personality, Dan Hell, rather than petitioner, Donald York, was present at the shooting. Additionally, petitioner alleges that he has learned-again through hypnosis and Dan Hell-that another individual, known only as the "red-haired man" and seen only by Dan Hell, was in fact responsible for the shootings. Petitioner has introduced no evidence beyond his own hypnosis-induced testimony to establish any element of this claim that a red-haired man, not the petitioner, committed the acts in question. This Court finds that petitioner's story fails to rise to the level of a colorable showing of actual innocence. Additionally, this Court, finds that petitioner's claims regarding trial counsel's alleged conflict of interest and petitioner's claim that the Habeas Court finding that petitioner was competent, nunc pro tunc, was reversible error are procedurally barred.
II. Plea Agreement
Petitioner alleges that he should be allowed to withdraw his plea agreement because: (1) "the trial court made no attempt to determine if [petitioner's] plea was voluntary"; (2) "Petitioner's plea was not knowing"; (3) "The plea hearing record does not contain necessary facts showing [petitioner] understood the nature and elements of the crimes he plead guilty to"; (4) the record does not "contain necessary facts that would substantiate the prosecution of the case at trial"; and (5) "there is a substantial probability that petitioner was not competent at the time he entered his plea . . . was not knowingly or voluntarily entered into."
A. Knowing and Voluntary Guilty Plea
To conform with the requirements of due process, a guilty plea must be knowingly and voluntarily entered. State v. Stilling, 856 P.2d 666, 671 (Utah Ct.App. 1993), A guilty plea is knowingly and voluntarily entered if it "represents a voluntary and intelligent choice among the alternative courses of action open to defendant." Parke v. Raley, 506 U.S. 20, 28, 113 S.Ct 517 (1992) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160 (1970). Petitioner appeared before Judge Rodney S. Page in the Second Judicial District Court, Davis County, Utah on October 29, 1985 and entered a plea of guilty. Petitioner alleges that the "[t]rial [c]ourt taking [petitioner's] guilty plea made absolutely no attempt to question or determine that [petitioner's] guilty plea was being entered voluntarily. . . ." Habeas Pet. p. 35. Additionally, petitioner argues that "no court in Utah has made a finding that [petitioner's] plea was voluntary." Id. This Court disagrees.
On October 29, 1985, at petitioner's change of plea hearing, the trial court did question petitioner regarding the voluntariness of his claim. The court asked petitioner if he had any questions about his prerogatives or rights. Change of Plea Hearing p. 5. The petitioner responded that he did not. Id. The court asked petitioner if he understood "the nature of the charge[s] against [him]/' Id. at 6. Petitioner responded that he did. Id. The court asked petitioner if he understood that by entering a guilty plea, petitioner would waive the right to a jury trial. Id. at 7. Petitioner responded affirmatively. Id. The court asked petitioner if he was satisfied with the counsel that he had received from his attorney in the matter. Id. at 8, Petitioner responded, "Very much so, yes." Id. The court asked petitioner if he had thoroughly gone over the plea agreement with counsel. Id. Petitioner responded that he had gone over the plea agreement with counsel. Id. The court asked petitioner if he realized that by entering a guilty plea, he was admitting the particular charge. Id, at 10. Petitioner responded that he understood. Id. Petitioner's counsel asked, "Are you entering a plea of guilty in your belief that you in fact engaged in conduct that is described in [the plea agreement]? Id. at 9. Petitioner responded affirmatively. Id.
The court then read the elements of second degree murder and attempted manslaughter and asked defendant if he admitted to the elements of each charge. Change of Plea Hearing pp. 10-11. Petitioner responded that he did admit to the elements. Id. at 11. Petitioner pled guilty to both counts. Id. The court then found based on the colloquy with petitioner and petitioner's cogent responses that the defendant knowingly entered his plea of guilty to Count I and Count II of the Amended Information, No 4638.
Whether a guilty plea is knowingly and voluntarily entered into is a question of fact. In reviewing a question of fact in a 28 U.S.C. § 2254 Habeas Petition, federal courts presume the state court to be correct. 28 U.S.C. § 2254 (e)(1) 1994 (Supp. 2003). The appellant has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id. In its Findings of Fact and Conclusions of Law, the trial court found that the petitioner "made the ultimate decision whether to accept the plea offer, and did not insist on going to trial." Findings of Fact p. 8. The court held that trial counsel "reasonably concluded that the plea offer was in defendant's best interest, and did not coerce defendant to plead guilty. Defendant faced a capital homicide conviction which was supported by the evidence. A jury could very well have imposed the death penalty if the matter had gone to trial." Id. at 10.
Given the substantial evidence against petitioner, the deference this Court is required to give to the trial court, the court of appeals decision holding that the plea was knowingly and voluntarily entered, and petitioner's failure to offer any significant rebutting evidence, this Court finds that petitioner's claim that his guilty pleas were not knowingly and voluntarily entered is without merit.
B. Petitioner's understanding of the crimes and their elements
Petitioner's allegation that at the time he entered his plea he did not know the elements of the crimes he was pleading guilty to is also without merit. At petitioner's change of plea hearing, the clerk read the Information on the record and petitioner was given a copy of the Information. Id. at 6. The court then stated, "Mr. York, you aware that Count 1 is a felony of the first degree, and carries with it a possible sentence of five years to life, and or a fine of $10,000.00. Do you understand that?" Id. Petitioner replied that he did. Id. The court then did the same with the second count. Id. When asked if he understood the nature of the second count, petitioner again answered affirmatively indicating, when asked, that it was his intent to plead guilty to both counts. Id. at 7.
The court later stated that Count I required that it "be proved beyond a reasonable doubt [that petitioner] intentionally or knowingly caused the death of Jeff Longhurst" and asked if petitioner would be willing to enter a plea of guilty to that charge. Id at 10. The court then stated, "you understand that under Count II you are charged with having attempted to cause the death of Patricia Young under the influence of extreme mental or emotional disturbance for which there is a [reasonable explanation]. Now again, each of those elements would have to be proved beyond a reasonable doubt to the trier of fact, whether it be this court or a jury, and by admitting to that particular charge, you admit each of those elements that you did attempt to take her life, ah, that you did under the influence of extreme mental or emotional disturbance for which there is [a reasonable explanation]." Id. at 10-11. Petitioner indicated that he understood the elements of each charge. Petitioner then proceeded to plead guilty to both counts, a plea which the court found to be knowingly and voluntarily entered.
Moreover, the record indicates, petitioner was clearly made aware of the elements of the crimes to which he plead guilty on three separate occasions: first, in reviewing the plea agreement with his attorney; second, when the court clerk read the Information into the record; and finally, when the judge read the elements of each count and asked him if he understood them before he accepted his plea. Therefore, this Court finds that the petitioner has failed to present sufficient facts to show that the trial court erred in finding that petitioner understood the nature and elements of the crimes to which he plead guilty.
C. "Substantiate prosecution at the trial"
Petitioner alleges that the record does not "contain necessary facts that would substantiate the prosecution of the case at trial." The Court interprets this to mean that petitioner argues that there was an insufficient factual basis for his guilty plea. This claim is without merit. On October 29, 1984, at his plea hearing, petitioner was read the elements of second degree murder and attempted manslaughter. Petitioner was asked if he admitted to the elements. Change of Plea Hearing p. 11. Under oath, petitioner admitted to the elements. Id. Additionally, petitioner signed a guilty plea, in which he also admitted to the elements. Plaintiffs in court admission and signature on the guilty plea alone form a sufficient factual basis to support a guilty plea. See Williams v. Hargett, 9 Fed. Appx, 958, June 2001 WL 618189 (10th Cir. (Oak)) DJCAR 2844. (Trial court's recitation of the elements of the crime and defendant's in court admission to the elements coupled with defendant's signature on plea agreement is sufficient to establish a factual basis for the plea).
In the instant case, there are additional facts that would support the factual basis for a guilty plea. First, petitioner's own confession at the police station, while wearing bloody clothing, that he was the person that the police were looking for. Findings of Fact November 26, 1997 p. 4. Second, the fact that petitioner told police where to find the gun and ammunition. York v. Shulsen, 590 F.2d at 592. Third, the petitioner's daughter, Anita, "told police and would have testified that she saw [petitioner] walk past her bedroom holding a gun" on the date in question, that she heard the shots, as well as the victim scream that he had been shot by petitioner. Findings of Fact November 26, 1997 p. 3. Additionally, "[a]t the hospital, [petitioner's] ex-wife, Patricia [also] identified [petitioner] as the shooter and identified [petitioner's] gun as the murder weapon." Id. These facts, in addition to the guilty plea and petitioner's in court admission that he had committed the crimes formed a sufficient basis in fact for the trial court to accept a guilty plea. Therefore, this Court finds that the trial court correctly found that a sufficient factual basis existed to support petitioner's guilty plea. Accordingly, petitioner's claim that there is not
sufficient evidence to support a guilty plea is without merit.
D. Trial Court's decision not to pursue additional psychological testing
Petitioner alleges that the trial court erred when it did not pursue additional psychological or psychiatric testing. Habeas Pet. p. 28. Additionally, petitioner alleges that he did not waive his right to an insanity defense, and that he was not informed that the insanity defense was being withdrawn. Habeas Pet. p. 32. "When the court receives notice that a defendant intends to claim that he is not guilty by reason of insanity or that he had diminished mental capacity, or that he intends to assert special mitigation under Section 76-5-205.5", the trial court must "order the Department of Human Services to examine the defendant and investigate his mental condition." Utah Code Ann. 1953 § 77-16a-301 (1)(a). In the instant case, the trial court appointed Dr. Kimball and Dr. Ghicadus of the Davis County Medical Health Center to evaluate petitioner. Both mental health experts, independently, determined that petitioner was not mentally ill. Utah Code Ann. 1953 § 77-16a-301 does not mandate compliance of any further requirements by the trial court. Therefore, this Court finds that the trial court did not err by not providing additional testing when two independent mental heath experts, both appointed by the trial court to evaluate petitioner, in accordance with state law, found that petitioner was not mentally ill and was capable of understanding, and assisting in, his own defense.
At the evidentiary hearing, trial counsel was asked if petitioner told him to withdraw his insanity defense. Counsel testified, "Absolutely. That was part and parcel of our decision about entering a plea." Evidentiary Hearing pp. 29-30. The trial court found that petitioner did waive his right to an insanity defense and was informed that his insanity defense was being withdrawn.
Based on the testimony of trial counsel and petitioner and giving appropriate deference to the trial court, this Court finds that petitioner did knowingly and voluntarily waive his right to an insanity defense and was informed that his insanity defense was being withdrawn.
III. Competency
Defendant argues that he was not competent to enter a guilty plea and that the trial court erred by determining his competency seven years after the fact. However, because petitioner failed to raise this claim in his writ of certiorari to the Utah Supreme Court, this Court will not review this claim on the merits. See Conflict of interest claim supra.
Conclusion
Petitioner's habeas petition is wholly without merit. Petitioner has been granted two evidentiary hearings in which the claims alleged in this petition have been heard and denied on the merits. In light of the deference this Court is required to give to the state court's findings of fact, the evidence found in the record, and the law, this Court finds that petitioner failed to meet, by clear and convincing evidence, the burden required to rebut the presumption of correctness given to the trial court. According petitioner's petition for Habeas relief is DENIED. IT IS SO ORDERED.