State v. Ciccolelli

2019 UT App 102
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ICHAEL JOHN C ICCOLELLI ,
Appellant.
Opinion
No. 20180039-CA
Filed June 13, 2019
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 171904131
Andrea J. Garland and Isaac E. McDougall,
Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
POHLMAN, Judge:
¶1 	Michael John Ciccolelli pleaded guilty to charges relating
to 	his receipt 	of 	stolen 	property, 	unlawful 	possession 	of 	a
firearm, and driving under the influence. He later sought to
withdraw 	his 	guilty 	pleas, 	claiming 	that 	they 	were 	not
knowingly and voluntarily made because he was under the
influence of drugs at his plea hearing. The district court denied
his motion to withdraw. Ciccolelli appeals, and we affirm.

State v. Ciccolelli
20180039-CA 	2 	2019 UT App 102
BACKGROUND
¶2 	After receiving a welfare call on January 25, 2017, police
officers found Ciccolelli in his car with drug paraphernalia in
plain view. The officers searched the vehicle and found a stolen
handgun in the center console. Ciccolelli also admitted to the
officers that he had recently used marijuana and opioids and had
been driving.
¶3 	Ciccolelli was 	charged 	with 	theft 	by 	receiving 	stolen
property, possession of a firearm by a restricted person, driving
under 	the 	influence, 	and 	possession 	of 	drug 	paraphernalia.
Ciccolelli was arrested and booked into jail on June 23, 2017, and
a hearing was scheduled for July 3, 2017.
¶4 	At the July 3 hearing, Ciccolelli pleaded guilty to the first
three charges.1 In exchange, the State dropped the fourth charge.
The 	district 	court 	conducted 	the 	following 	colloquy 	with
Ciccolelli:
The Court: Okay. All right, Mr. Ciccolelli, are you
thinking clearly right now?
Ciccolelli: Yes, ma’am.
The Court: Have you been able to go over all of this
with [your attorney]?
Ciccolelli: Yes, ma’am.
The Court: You’re going to be giving up a lot of
rights in this hearing today if you accept this offer
because you’re still at the early stages. Are you
1. The first count was reduced to attempted theft by receiving
stolen property.

State v. Ciccolelli
20180039-CA 	3 	2019 UT App 102
taking 	any 	medication 	or 	anything 	that 	would
affect that?
Ciccolelli: No, ma’am.
. . . .
The Court: Are you ready to accept this offer,
change 	your 	plea 	and 	move 	on 	towards 	the
sentencing?
Ciccolelli: Yes, Your Honor.
¶5 	To finalize the plea agreement, Ciccolelli was invited by
the court to sign a statement (the Plea Statement). Under the
heading “Defendant’s Certification of Voluntariness,” the Plea
Statement provided:
I [Ciccolelli] am entering this plea of my own free
will and choice. . . .
I have read this statement, or I have had it read to
me by my attorney, and I understand its contents
and adopt each statement in it as my own. . . .
I 	was 	not 	under 	the 	influence 	of 	any 	drugs,
medication, 	or 	intoxicants 	which 	impair 	my
judgment when I decided to plead guilty. I am not
presently 	under 	the 	influence 	of 	any 	drug,
medication, or intoxicants which would impair my
judgment.
I believe myself to be of sound and discerning
mind and to be mentally capable of understanding
these proceedings and the consequences of my
plea. I am free of any mental disease, defect, or
impairment 	that 	would 	prevent 	me 	from

State v. Ciccolelli
20180039-CA 	4 	2019 UT App 102
understanding 	what 	I 	am 	doing 	or 	from
knowingly, intelligently, and voluntarily entering
my plea.
¶6 	Not one month later, Ciccolelli moved to withdraw his
guilty pleas. In his written motion, he argued that “he was not
thinking 	clearly 	on 	July 	3, 	2017 	as he was still 	under 	the
influence of drugs or alcohol consumed prior to his booking on
June 23, 2017.” At the plea-withdrawal hearing, Ciccolelli again
stated that he “did not understand the thing [his] attorney had
been explaining to [him] throughout that whole process due to
the large amounts of drugs that [his] mind and body were
coming off of.” Ciccolelli did not identify what drugs he had
consumed or when precisely he took them. He also did not
present the court with any evidence to support his claim that his
ability to understand the plea agreement was adversely affected
by his prior drug use.
¶7 	The district court denied the motion. It viewed Ciccolelli’s
motion to withdraw as being “based on 	the fact 	that [he]
believe[s] that [he was] still under the influence of drugs 10 days
or so—many days after [he] had been arrested—and . . . that,
therefore, 	the 	plea[s] 	could 	not 	have 	been 	knowing 	and
voluntary.” The court then noted that before it accepted his
guilty pleas, it “asked [Ciccolelli] specifically if [he was] under
the influence of any alcohol or drugs” and “if [he] understood
what was happening.” The court stated that “at no time did
[Ciccolelli] 	indicate 	that 	[he] 	did 	not 	understand” 	the 	plea
agreement and that Ciccolelli “signed the statement” after he
“went through it carefully, paragraph by paragraph and agreed
before [he] entered the plea[s] that every paragraph was true.”
The court found that what Ciccolelli said during the plea hearing
was “more persuasive and more credible” than what he argued
in his motion to withdraw. Further, it found that there “were no
indications that [Ciccolelli was] under the influence of alcohol or
drugs at the time that [he] entered into the plea[s].” Accordingly,
the court denied Ciccolelli’s motion to withdraw his guilty pleas.

State v. Ciccolelli
20180039-CA 	5 	2019 UT App 102
¶8 	After ordering a presentence investigation report, the
court sentenced Ciccolelli to two concurrent prison terms not to
exceed five years. Ciccolelli appeals.
ISSUE AND STANDARD OF REVIEW
¶9 	Ciccolelli contends that the district court should have
granted his motion to withdraw his guilty pleas because “he
demonstrated that he did not enter knowing and voluntary
pleas.” We will reverse a district court’s “ruling on a motion to
withdraw a guilty plea only when we are convinced that the
court has abused its discretion.” State v. Beckstead, 2006 UT 42,
¶ 7, 140 P.3d 1288. And we will disturb the court’s underlying
findings of fact “only if they are clearly erroneous.” Id.; see also
State v. Smith, 2018 UT App 144, ¶ 19, 427 P.3d 1251.
ANALYSIS
¶10 	A guilty plea “may be withdrawn only upon leave of the
court and a showing that it was not knowingly and voluntarily
made.” Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017). The
burden of proof is on the defendant who “must show either that
he did not in fact understand the nature of the constitutional
protections that he was waiving by pleading guilty, or that he
had such an incomplete understanding of the charge that his
plea cannot stand as an intelligent admission of guilt.” State v.
Alexander, 2012 UT 27, ¶ 23, 279 P.3d 371 (cleaned up).
¶11 	Ciccolelli has not met his burden of showing how drugs
he allegedly used at least ten days before the plea hearing
affected his ability to understand the consequences of pleading
guilty. Ciccolelli confirmed at the plea hearing that he was
“thinking clearly” and not “taking any medication or anything”
that would affect his ability to understand the proceedings. And
in the Plea Statement, he represented that he “was not under the
influence of any drugs, medication, or intoxicants which would

State v. Ciccolelli
20180039-CA 	6 	2019 UT App 102
impair 	[his] 	judgment” 	and 	that 	he 	was 	“of 	sound 	and
discerning mind.” Although “the defendant’s own assurances of
his capacity are not conclusive, courts have commonly relied on
the defendant’s own assurance . . . that the defendant’s mind is
clear.” Oliver v. State, 2006 UT 60, ¶ 13, 147 P.3d 410 (cleaned up).
And we discern no error in the district court’s reliance on
Ciccolelli’s assurances that he was of clear mind when entering
his guilty pleas.2
¶12 	But 	even 	if 	we 	were 	to 	conclude 	that 	Ciccolelli’s
assurances were inconclusive, the use of drugs alone does not
render him incompetent. See id. ¶ 7 (“The use of narcotics [or
other 	substances] 	does 	not 	per 	se 	render 	a 	defendant
incompetent to stand trial, nor, presumably, to plead guilty.”
(cleaned up)). Instead, it is “the drug’s effect and not the mere
presence of the drug that matters.” Id. (emphasis added). Both
the Utah Supreme Court and this court have upheld a district
court’s determination that a plea was knowing and voluntary
despite the defendant later claiming to have been under the
influence of drugs or alcohol. Id. ¶ 15 (upholding a district
court’s 	determination 	that 	a 	defendant 	who 	had 	taken
psychotropic 	drugs 	was 	still 	able 	to 	make 	a 	knowing 	and
voluntary plea); State v. Beckstead, 2006 UT 42, ¶ 21, 140 P.3d 1288
(upholding a district court’s determination that a defendant who
had 	consumed 	alcohol 	nonetheless 	entered 	a 	knowing 	and
2. 	Ciccolelli 	contends 	that 	“the 	[district] 	court 	had 	actual
knowledge of [his] potential for impairment” because the court
knew that Ciccolelli was a drug user and therefore should have
inquired further into his drug use. This argument cuts too
broadly. Under Oliver v. State, 2006 UT 60, 147 P.3d 410, a court
has a duty to “inquire further” “when the defendant confirms that
he has recently taken a drug.” Id. ¶ 10 (emphasis added). Here,
Ciccolelli affirmed that he was “thinking clearly” and not taking
“any medication or anything” that would affect his ability to
plead guilty.

State v. Ciccolelli
20180039-CA 	7 	2019 UT App 102
voluntary plea); State v. Powell, 2015 UT App 250, ¶¶ 7–8, 361
P.3d 	143 	(upholding 	a 	district 	court’s 	determination 	that 	a
defendant’s guilty pleas were knowing and voluntary despite
evidence that the defendant had taken drugs that morning).
¶13 	As these and other cases demonstrate, to withdraw a
guilty plea a defendant must show how his or her ability to
understand the plea agreement was impaired. State v. Smith,
2018 UT App 144, ¶¶ 33, 38, 427 P.3d 1251 (holding that a
defendant had not met his burden in demonstrating that his
pleas were not knowing and voluntary); State v. Collins, 2015 UT
App 214, ¶ 9, 359 P.3d 664 (same); State v. Martinez, 2014 UT App
153, ¶ 3, 330 P.3d 759 (per curiam) (same). General assertions
that a defendant did not understand the plea agreement, without
supporting evidence, are not sufficient. Powell, 2015 UT App 250,
¶ 8. And even if a plea colloquy is “far from the model colloquy
envisioned 	by 	rule 	11 	[of 	the 	Utah 	Rules 	of 	Criminal
Procedure],” the burden remains on the defendant to show how
his guilty pleas were not knowingly and voluntarily made.
Smith, 2018 UT App 144, ¶¶ 34, 37–38.
¶14 	Here, Ciccolelli provided no evidence of what drugs he
used, when he used them, how long they would have stayed in
his system, or how they would have affected his competency. He
asserts 	for 	the 	first 	time 	on 	appeal 	that 	withdrawal 	from
(unspecified) drugs “can last weeks or even months” and lists a
wide range of symptoms that may occur “[d]epending on the
drug 	used.” 	However, 	he 	has 	never 	explained 	(much 	less
proved) 	what 	symptoms 	he 	experienced 	or 	whether 	those
hypothetical symptoms would be serious enough to affect his
ability to understand the nature and consequences of his guilty
pleas. That is, Ciccolelli provided no “objective evidence” that he
was “actually suffering from a mental impairment as a result of
taking” drugs. See Powell, 2015 UT App 250, ¶ 7. Rather, as in
Powell, the only evidence Ciccolelli can identify in the record is
his self-serving statements that “he was not thinking clearly”
and “did not understand the thing [his] attorney had been

State v. Ciccolelli
20180039-CA 	8 	2019 UT App 102
explaining.” See id. ¶ 8. Unfortunately for Ciccolelli, “[t]his falls
far short of carrying his burden of establishing that, during the
[plea] hearing, he did not understand either the charges against
him 	or 	the 	constitutional 	protections 	he 	was 	waiving 	by
pleading guilty.” See Collins, 2015 UT App 214, ¶ 9; see also Smith,
2018 UT App 144, ¶ 38; Powell, 2015 UT App 250, ¶ 8.
CONCLUSION
¶15 	For the foregoing reasons, we conclude that the district
court did not abuse its discretion when it denied Ciccolelli’s
motion to withdraw his guilty pleas. The district court’s ruling is
therefore affirmed.