State v. Smith

2018 UT App 144
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
C ODY C. S MITH ,
Appellant.
Opinion
No. 20150736-CA
Filed July 27, 2018
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 141100216
David M. Perry, Attorney for Appellant
Sean D. Reyes and Lindsey Wheeler, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Opinion. JUDGE D AVID N.
M ORTENSEN concurred. JUDGE R YAN M. HARRIS concurred, with
opinion, in which JUDGE DAVID N. M ORTENSEN joined.
ORME, Judge:
¶1 	Facing 	fourteen 	charges 	of 	sexual 	misconduct 	with
children, 	Defendant 	Cody 	C. 	Smith 	entered 	into 	a 	plea
arrangement whereby he pled no contest to two counts of
aggravated sexual abuse of a child. Before sentencing, Defendant
moved to withdraw his pleas. The trial court denied his motion
and proceeded to the sentencing stage. Defendant now appeals
the court’s order denying his plea withdrawal motion. 	We
affirm.

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20150736-CA 	2 	2018 UT App 144
BACKGROUND
¶2 	Defendant was charged with three counts of rape of a
child, six counts of object rape, one count of criminal solicitation,
one count of forcible sexual abuse, and three counts of unlawful
sexual activity with a minor. He was bound over on all charges,
and the case proceeded to trial.
The Plea Hearing
¶3 	The trial court held a plea hearing on the second day of
trial upon being informed that Defendant had reached a plea
agreement with the State. At the hearing, Defendant’s trial
counsel informed the court that, in exchange for pleading no
contest to two counts of aggravated sexual abuse of a child, the
State had agreed to drop all fourteen original charges and to
recommend that Defendant be sentenced to two terms of six
years to life in prison. As a part of the agreement, Defendant
would be taken into custody immediately after the plea hearing.
¶4 	Defendant’s counsel then turned her attention to the plea
affidavit, which, she assured the court, she had “thoroughly”
reviewed with Defendant prior to the plea hearing. The affidavit
recited that the “State will stipulate to two six-to-life sentences
and will argue for consecutive sentences” at the sentencing
hearing, with the caveat that the State’s recommendations were
“not binding on the judge.” It further recited that Defendant
“will be taken into custody today.” Finally, immediately above
the space for Defendant’s signature, the affidavit recited the
following, in bold print: “I will only be allowed to withdraw my
plea if I show that it was not knowingly and voluntarily made.”
¶5 	When prompted by the court, Defendant signed the plea
affidavit, thereby attesting that he had “read this statement” or
“had 	it 	read 	to 	[him] 	by 	[his] 	attorney” 	and 	that 	he
“underst[ood] its contents and adopt[ed] each statement in it” as
his own. Further, by signing, he certified that he had “fully
discussed” the contents of the affidavit with his counsel and that
he was “satisfied with [her] advice and assistance.”

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20150736-CA 	3 	2018 UT App 144
¶6 	After Defendant had signed the plea affidavit, the court
commenced the plea colloquy. The court began by inquiring
whether Defendant had “consumed any alcohol or drugs before
coming 	to 	court” 	and 	whether 	he 	was 	“thinking 	clearly.”
Defendant responded that he was not under the influence of any
substance and that he had a clear mind. The court then asked,
“Do 	you 	understand 	what’s 	taking 	place?” 	Defendant
responded, “For the most part, yes.”
¶7 	Following that cryptic comment, the court again asked
whether Defendant had “any questions about what’s taking
place.” Defendant responded,
The only thing I really have a question on is why
they’re 	going 	to 	take 	me 	today 	when . . . I’ve
complied 	with 	everything . . . . I 	took 	this 	after
talking with my attorney, but I don’t understand
why they’re going to take me today when I’ve
complied 	with 	everything 	[and] 	followed
through . . . . I’d just ask for a couple days so I
could get some things placed in order financially,
so 	I 	can 	set 	something 	up 	. 	. 	. 	for 	my
two . . . children I’ve got. I’m not a threat. I’m not
going anywhere.
At that point, Defendant’s counsel turned to him, saying, “I’m
sure the judge will take that into consideration.” When asked by
the court whether the agreement was contingent on Defendant’s
immediate incarceration, the State responded in the affirmative,
explaining that it was necessary to prevent Defendant from
“harm[ing] himself” and that he had already “been out on bail
for quite some time.” The court then continued the colloquy and
did not broach the immediate-incarceration issue again.
¶8 	After confirming that Defendant had been given “enough
time to speak with” his attorney, the court asked Defendant
whether he “underst[ood] the constitutional rights” that were
“set forth in [the] document that [he] signed.” When Defendant
hesitated, the court offered this clarification:

State v. Smith
20150736-CA 	4 	2018 UT App 144
THE COURT: 	Do 	you 	understand 	you
have . . . various constitutional
rights 	that 	are 	addressed 	in
this document that you have
signed? 	Do 	you 	understand
that 	you 	have 	those various
constitutional rights?
DEFENDANT: 	Oh. Yes, sir. I do.
THE COURT: 	Okay. 	And 	you 	understand
that 	you 	waive 	those
constitutional 	rights 	by
pleading guilty . . . no contest?
DEFENDANT: 	No contest, yeah . . . .
THE COURT: 	You 	understand 	that 	a 	no
contest plea, as it relates to the
law, is treated the same legally
as 	far 	as 	the 	impact . . . and
result as a guilty plea?
DEFENDANT: 	Yes, sir. I do, sir.
THE COURT: 	You understand the statutory
consequences 	of 	entering 	a
guilty plea to two first-degree
felony charges of aggravated
sexual abuse of a child?
COUNSEL: 	The penalties?
DEFENDANT: 	Yeah. Oh, yes.
The court then asked the State to provide a factual basis for the
plea, and Defendant stated that he did not wish to contest the
State’s allegations. 	Finally, 	Defendant 	confirmed 	that, 	“after

State v. Smith
20150736-CA 	5 	2018 UT App 144
speaking with [his] attorney,” it was his belief that accepting the
State’s agreement was in his best interest.
¶9 	With 	that, 	the 	court 	accepted 	Defendant’s 	pleas 	“as
having 	knowingly 	and 	voluntarily 	been 	given.” 	The 	court
further explained that Defendant had “the right to withdraw
[his] guilty plea on good cause shown . . . prior to sentencing,”
and 	Defendant’s 	counsel 	took 	no 	issue 	with 	the 	court’s
statement. When the hearing ended, Defendant was immediately
taken into custody.
The Plea Withdrawal Motion
¶10 	After retaining new counsel, but still prior to sentencing,
Defendant 	moved 	to 	withdraw 	his 	no-contest 	pleas. 	In 	his
motion, Defendant claimed that he had not read or understood
the contents of the plea affidavit; that he did not understand
“certain crucial aspects of his plea,” including that he would be
taken into custody immediately and that he would be exposed to
the risk of a life sentence; that the State had improperly withheld
a “quarter-inch stack” of incriminating papers during discovery;
that, 	rather 	than 	asking 	for 	a 	continuance 	to 	analyze 	the
incriminating papers, his initial trial counsel coerced him into
accepting the plea agreement by showing him the papers on the
evening of the first day of trial; and, finally, that the trial court
had misinformed him of the standard for withdrawing his pleas.
For these reasons, Defendant maintained that his initial counsel
rendered ineffective assistance and that his plea was not entered
knowingly and voluntarily.
¶11 	The 	trial 	court 	addressed 	Defendant’s 	motion 	in 	a
bifurcated manner. In its first “partial order,” the court rejected
Defendant’s contention that he had been misinformed of the
proper 	legal 	standard 	because 	the 	proper 	“knowing 	and
voluntary” 	language 	was 	reflected 	in 	the 	plea 	colloquy
transcript. The court further determined that Defendant had not
been prejudiced by its improper reference during the colloquy to
a “good cause” standard for plea withdrawal because, as it

State v. Smith
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turned out, Defendant timely filed the motion and cited the
proper standard.
¶12 	Before ruling on the remaining issues in Defendant’s
motion, the trial court held an evidentiary hearing. At the
hearing, Defendant’s initial trial counsel testified that the State
came to Defendant with the offer of a plea bargain on the first
day of trial and that there were two “turning point[s]” in the
ensuing negotiations. The first was the State’s strict deadline: if
Defendant did not accept the plea agreement before the second
day of trial, when Victim was scheduled to testify, there would
be no deal. The second was that Defendant was permitted to
speak with Victim while the negotiations took place. Counsel
testified that Defendant was moved by the time spent with
Victim, and it was counsel’s opinion that the meeting had a
“huge impact” on Defendant’s decision to accept the State’s
offer.
¶13 	Defendant’s 	initial 	counsel 	further 	testified 	that 	she
discussed the State’s offer and the contents of the plea affidavit
with Defendant for a “substantial period of time” on the evening
of the first day of trial and the morning of the second. To begin
with, she testified that she explained to Defendant that the State
insisted he be taken into custody immediately after the plea
hearing. She also explained to him, “again and again,” that the
agreed-upon sentence was six-to-life. Additionally, in view of
the “twisted and bizarre” nature of the evidence, she testified
that she told Defendant that she believed accepting the offer was
in his best interest. She explained that she was particularly
concerned 	about 	Defendant’s 	case 	after 	observing 	the 	jury
during the first day of trial, noting that one juror had advised the
court he could not “do this anymore” and asked to be excused.
¶14 	Defendant’s initial counsel also testified regarding the
incriminating papers Defendant described in his motion. She
explained that the papers, which consisted of a stack of photos
the prosecution had downloaded from Defendant’s phone, had
been disclosed to her prior to trial in the form of a police report
containing 	detailed 	descriptions 	of 	the 	photos. 	She 	further

State v. Smith
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testified that she had seen copies of all the photos before trial,
with the exception of one, which depicted a nude girl with the
word 	“TeenMegaWorld” 	printed 	near 	the 	bottom. 	Counsel
explained that she had waited to view the photo until the State
provided a printed copy at trial because it was her practice not to
download pornographic material during discovery, but in any
event, she explained, the photo was far from “the most explosive
thing 	in 	the 	case.” 	Although 	she 	did 	express 	concern 	to
Defendant about the photo while discussing the State’s plea offer
with him, she did not consider it a “critical” piece of evidence
because 	Defendant 	had 	not 	been 	charged 	with 	child
pornography offenses and the photo did not depict Victim.
Furthermore, she explained that even if she had not known
about the photos prior to trial, there would have been no need to
request a continuance to investigate them because Defendant
admitted that they were his.
¶15 	Defendant’s mother and brother-in-law also testified at
the evidentiary hearing, as they had been present during part of
Defendant’s discussion with his former counsel regarding the
plea agreement. Defendant’s mother testified that she found
Defendant’s initial trial counsel “aggressive and demanding,”
recalling that counsel had informed her that Defendant would
likely spend the rest of his life in prison if he did not accept the
State’s 	offer. 	However, 	she 	also 	testified 	that 	she 	believed
counsel was “very clear” about the fact that the State offered to
recommend 	a 	sentence 	of 	“six 	to 	life.” 	Defendant’s
brother-in-law, on the other hand, testified that counsel had said
the State offered to recommend “two six-year terms.” However,
he 	also 	acknowledged 	that 	he 	was 	not 	present 	during
Defendant’s entire discussion with counsel and that he had “no
knowledge” of what was said outside his presence.
¶16 	Finally, Defendant himself testified at the evidentiary
hearing. He denied that he had read the plea affidavit prior to
the plea hearing and, despite his expressed protest at the plea
hearing of the immediate incarceration provision, claimed he
was unaware that he would be incarcerated immediately after

State v. Smith
20150736-CA 	8 	2018 UT App 144
that hearing. He did not deny that, at the plea hearing, he had
informed the court that he understood the rights stated in the
affidavit 	and 	the 	maximum 	penalties 	he 	would 	face 	upon
entering his pleas.
¶17 	Following the evidentiary hearing, the court disposed of
the remaining issues in Defendant’s plea withdrawal motion on
the record and in a second written order. Citing the contents of
the 	plea 	affidavit, 	the 	transcript 	of 	the 	plea 	hearing, 	and
testimony elicited during the evidentiary hearing, the court
found 	that 	Defendant’s 	pleas 	were 	made 	knowingly 	and
voluntarily and that the factual contentions in his motion were
“not credible in light of all the other evidence.” Further, relying
“heavily” on the testimony of Defendant’s initial trial counsel
regarding the relative significance of the incriminating photos,
the court concluded that Defendant failed to meet his burden of
demonstrating 	that 	his 	counsel’s 	failure 	to 	move 	for 	a
continuance 	or 	a 	mistrial 	constituted 	deficient 	performance.
Accordingly, the court rejected Defendant’s claim of ineffective
assistance of counsel.
¶18 	Soon after denying Defendant’s motion, the court held a
sentencing hearing. At the conclusion of the hearing, Defendant
was sentenced to two concurrent prison terms of ten years to life.
Defendant now appeals the court’s denial of his motion to
withdraw his no-contest pleas.
ISSUE AND STANDARDS OF REVIEW
¶19 	Defendant maintains that the trial court erred in denying
his motion to withdraw his no-contest pleas. “We review the
denial of a motion to withdraw a guilty plea under an abuse of
discretion standard, disturbing the findings of fact made in
conjunction 	with 	that 	decision 	only 	if 	they 	are 	clearly
erroneous.” State v. Ruiz, 2013 UT App 274, ¶ 12, 316 P.3d 984.
But the ultimate question of whether a trial court complied with
constitutional and procedural requirements in entering a plea is

State v. Smith
20150736-CA 	9 	2018 UT App 144
a question of law that we review for correctness. See State v.
Holland, 921 P.2d 430, 433 (Utah 1996).
ANALYSIS
¶20 	A no-contest 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). “A plea is not knowing and voluntary when the record
demonstrates that ‘the accused does not understand the nature
of the constitutional protections that he is waiving,’” State v.
Alexander, 2012 UT 27, ¶ 16, 279 P.3d 371 (quoting Henderson v.
Morgan, 426 U.S. 637, 645 n.13 (1976)), or when the record
demonstrates 	that 	he 	entered 	his 	pleas 	without 	“‘sufficient
awareness 	of 	the 	relevant 	circumstances 	and 	likely
consequences,’” id. (quoting Bradshaw v. Stumpf, 545 U.S. 175, 183
(2005)).
¶21 	Defendant contends that, contrary to the court’s findings,
his pleas were not made knowingly and voluntarily. Defendant
advances several arguments in support of this contention. First,
he argues that the court committed reversible error when it
referred to the incorrect legal standard for withdrawing a plea
during the plea hearing. Second, he maintains that the trial court
erred in finding that he read and understood the contents of the
plea affidavit before entering his pleas, including its provisions
explaining that he would be incarcerated immediately after the
plea hearing and that he would face a potential life sentence.1
1. In his reply brief, Defendant further argues that even if the
record did support a finding that he read and understood the
plea affidavit, it would still not have supported the finding that
his pleas were knowing and voluntary because the affidavit itself
contained 	“numerous 	errors 	and 	omissions” 	that 	were 	not
corrected by the court at the plea hearing. But this argument
comes too late. “When an appellant saves an issue for the reply
brief, he deprives the appellee of the chance to respond. And
(continued…)

State v. Smith
20150736-CA 	10 	2018 UT App 144
And third, he argues that, as a matter of law, his pleas could not
have been made knowingly and voluntarily because the plea
colloquy directed by the court was “fundamentally flawed.”2 We
address each of Defendant’s arguments in the order we have
stated them.
A. 	The Incorrect Statement of the Plea Withdrawal Standard
¶22 	Defendant first contends it is “fundamentally unfair” that
he 	should 	be 	held 	to 	section 	77-13-6(2)’s 	“knowing 	and
voluntary” standard for withdrawing a plea when the court
informed 	him 	during 	the 	plea 	hearing 	that 	he 	would 	be
permitted to withdraw his pleas upon a showing of “good
cause.” 	As he correctly observes, the Legislature replaced the
now defunct “good cause” standard with the current “knowing
and voluntary” standard in 2003. See generally Act of May 5,
2003, ch. 290, § 1, 2003 Utah Laws 1321 (codified at Utah Code
(…continued)
that leaves us without a central tenet of our justice system—
adversariness. That is fatal.” Kendall v. Olsen, 2017 UT 38, ¶ 13.
See also State v. Johnson, 2017 UT 76, ¶ 71, 416 P.3d 443 (Lee, J.,
concurring) (stating that issues raised by an appellant for the
first time in the reply brief are considered waived).
2. 	Defendant 	also 	contends 	that 	his 	initial 	trial 	counsel’s
handling of the incriminating photos and failure to move for a
continuance or a mistrial rendered his plea involuntary and
constituted ineffective assistance of counsel. But these sections of
Defendant’s brief are an exact regurgitation of his motion to
withdraw his plea filed before the evidentiary hearing. As such,
Defendant does not address his initial trial counsel’s testimony
at the evidentiary hearing or the basis for the trial court’s ruling.
Accordingly, we reject these challenges. See State v. MacDonald,
2017 UT App 124, ¶ 49, 402 P.3d 91 (stating that we will reject an
appellant’s challenge where he or she fails to address the basis of
the trial court’s ruling).

State v. Smith
20150736-CA 	11 	2018 UT App 144
Ann. § 77-13-6 (2017)) (amending the plea withdrawal statute,
which had permitted defendants to withdraw a plea “upon good
cause shown,” to instead require “a showing that [the plea] was
not knowingly and voluntarily made”).
¶23 	We have had occasion to address this argument before. In
State v. Ferretti, 2014 UT App 224, 336 P.3d 43, the appellant
argued “that he should be permitted to withdraw his plea
because the trial court misinformed him that the legal standard
for withdrawing his guilty plea was good cause, when the actual
standard requires a showing that the plea was not knowingly
and voluntarily made.” Id. ¶ 8. As a result of the misstatement,
the appellant maintained that “the court should have been
bound by the good cause standard rather than the knowing and
voluntary standard in ruling on his motion to withdraw his
plea.” Id. ¶ 8 n.4. We concluded that the appellant’s reasoning
was 	unpersuasive 	because 	he 	had 	“cite[d] 	no 	authority 	in
support of this estoppel argument.” Id.
¶24 	Defendant likewise fails to cite any authority to support
his similar argument, and he does not address Ferretti. Instead,
he asserts that the trial court failed to strictly comply with
rule 11 	of 	the 	Utah 	Rules 	of 	Criminal 	Procedure 	when 	it
mistakenly mentioned the now defunct good cause standard for
withdrawing a plea. As a result, Defendant asserts that he “was
yet again ill-informed as to a crucial part required by the rule 11
colloquy” and that the lack of strict compliance precluded him
from entering his plea knowingly and voluntarily. Defendant is
mistaken.
¶25 	First, rule 11 “does not require the trial court to inform the
defendant of the legal standard [for withdrawing a plea] at all.”
See id. ¶ 8. And while rule 11 “does require the trial court to
inform the defendant ‘of the time limits for filing any motion to
withdraw the plea,’ it explicitly provides that ‘failure to advise
the 	defendant 	of 	the 	time 	limits 	for 	filing 	any 	motion 	to
withdraw a plea is not a ground for setting the plea aside.’” Id.
(brackets 	and 	ellipsis 	omitted) 	(quoting 	Utah 	R. 	Crim. 	P.
11(e)(7), (f)). More importantly, we have stated that “[r]ule 11’s

State v. Smith
20150736-CA 	12 	2018 UT App 144
treatment of a defendant’s right to receive instruction regarding
the 	withdrawal 	of 	his 	plea 	suggests 	that 	a 	defendant’s
understanding 	of 	the 	rules 	and 	procedure 	for 	moving 	to
withdraw a plea does not have constitutional implications” or
affect the voluntariness of a plea. Id.
¶26 	Second, courts are no longer required to strictly comply
with rule 11. To be sure, the level of compliance required by rule
11 has a somewhat complicated history. Prior to 1987, rule 11
required substantial compliance. See State v. Walker, 2013 UT
App 198, ¶ 34, 308 P.3d 573 (stating that “[p]rior to the Utah
Supreme Court’s decision in State v. Gibbons, 740 P.2d 1309 (Utah
1987), a trial court was required to substantially comply” with
rule 11). Following the pronouncement in Gibbons, courts were
required to strictly comply with rule 11 until the rule was
amended in 2005. Under a heading entitled “[s]trict compliance
not necessary,” the amendment added the following language
setting forth the new standard: “Failure to comply with this rule
is not, by itself, sufficient grounds for a collateral attack on a
guilty plea.” Utah R. Crim. P. 11(l). Rather, compliance “shall be
determined by examining the record as a whole,” and “any
variance from the procedures required by this rule which does
not affect substantial rights shall be disregarded.” Id.
¶27 	Adding to the complexity of rule 11’s history is the fact
that it is not uncommon for criminal defendants to attempt to
withdraw their pleas years and even decades after entering
them. This is highlighted by Defendant’s reliance on State v.
Lovell, 2011 UT 36, 262 P.3d 803, a case decided well after the
2005 amendment. Despite Lovell’s 2011 issuance, our Supreme
Court applied the strict compliance standard both because the
defendant there had entered his plea in 1993 and because the
Court applied the “clear break” principle to rule 11, which
prohibits the retroactive application of an amended rule of
criminal procedure if the amendment constitutes a fundamental
shift in the law. See id. ¶¶ 3 n.1, 72–74. The Court has since
abandoned the use of the “clear break” rationale and abrogated
Lovell. See State v. Guard, 2015 UT 96, ¶¶ 52–53, 61, 371 P.3d 1. In

State v. Smith
20150736-CA 	13 	2018 UT App 144
sum, the trial court was not required to strictly comply with
rule 11 in the case at hand.
¶28 	“[E]xamining the record as a whole,” see Utah R. Crim. P.
11(l), Defendant has not persuaded us that the trial court’s
misstatement of the withdrawal standard precluded him from
entering the plea knowingly and voluntarily. This is especially
so given that the plea affidavit included the correct withdrawal
standard and Defendant signed and entered the plea before the
court misquoted the withdrawal standard. As such, there is
nothing to suggest that the court’s misstatement affected his
substantial rights. See id.
B. 	The Contents of the Plea Affidavit
¶29 	Defendant 	maintains 	that 	the 	trial 	court 	erred 	in
determining his pleas were knowing and voluntary because its
underlying 	findings 	were 	not 	supported 	by 	the 	record.
Specifically, he argues that the record shows that when he
signed 	the 	affidavit, 	he 	was 	unaware 	of 	two 	significant
provisions of the plea agreement. First, he maintains he was
unaware of the requirement that he be taken into custody
immediately after the plea hearing. In support, he argues that his
questions 	at 	the 	plea 	hearing 	regarding 	the 	immediate
incarceration 	requirement 	evinced 	a 	“fundamental 	lack 	of
understanding” about that “crucial aspect[] of his plea.” Second,
he maintains he was unaware that by entering his pleas he
would be exposing himself to the risk of a life sentence.3 In
3. 	Defendant 	also 	contends 	that 	his 	failure 	to 	grasp 	the
immediate incarceration and sentencing provisions of the plea
affidavit 	“strongly 	suggests 	he 	did 	not 	read 	or 	otherwise
understand” any other provision in the affidavit. Because he
does not succeed in persuading us that the trial court clearly
erred in finding he was aware of these two provisions, the
premise 	of this argument fails, 	and 	we therefore need not
discuss it further.

State v. Smith
20150736-CA 	14 	2018 UT App 144
support of this contention, he cites his own testimony at the
evidentiary 	hearing, 	together 	with 	the 	affidavit 	of 	his
brother-in-law.
¶30 	As stated above, we will disturb the trial court’s findings
of fact in support of its decision to deny Defendant’s plea
withdrawal motion “only if they are clearly erroneous.” State v.
Beckstead, 2006 UT 42, ¶ 7, 140 P.3d 1288.
¶31 	Given all the evidence in the record, Defendant has not
persuaded us that the court clearly erred in finding that he
understood 	the 	contents of 	the 	plea 	affidavit, 	including 	its
sentencing 	and 	immediate 	incarceration 	provisions. 	We
acknowledge that Defendant testified at the evidentiary hearing
that he had not read or understood the plea affidavit and that his
initial trial counsel did not review the affidavit with him. But
contrary 	to 	this 	testimony, 	Defendant’s 	initial 	trial 	counsel
testified at the evidentiary hearing that she thoroughly reviewed
the plea affidavit with Defendant and explained to him the
State’s 	immediate 	incarceration 	requirement, 	informing 	him,
“again and again,” that the State would recommend he be
sentenced to two terms of six years to life in prison. Defendant’s
mother, too, testified that counsel had been “very clear” about
the State’s “six-to-life” recommendation when explaining the
terms 	of 	the 	plea 	agreement. 	And 	while 	Defendant’s
brother-in-law testified that he recalled counsel saying the State
would recommend “two six-year terms,” the trial court was free
to instead credit the contrary testimony of Defendant’s mother
and his initial trial counsel.
¶32 	As for Defendant’s argument that his questions at the plea
hearing 	regarding 	the 	immediate 	incarceration 	requirement
demonstrated a “fundamental lack of understanding” on his
part, we simply cannot agree. If Defendant had made statements
during the hearing indicating that he had been broadsided by
the State’s immediate incarceration requirement at that hearing,
his argument 	might 	have 	been 	more 	persuasive. 	But 	upon
examining the record, we think it obvious that Defendant’s
questions were directed to why, not to whether, he would be

State v. Smith
20150736-CA 	15 	2018 UT App 144
incarcerated 	immediately 	after 	the 	plea 	hearing. 	From 	our
review of the plea hearing transcript, it is obvious that the State’s
demand that Defendant be incarcerated immediately did not
take him by surprise. Rather, Defendant’s questions were about
the necessity and propriety of the demand. He asked why the
State needed to take him into custody immediately when he had
“complied with everything,” was “not a threat,” and was “not
going 	anywhere.” 	Far 	from 	demonstrating 	a 	lack 	of
understanding, Defendant’s questions indicate that he had given
the immediate incarceration requirement some careful thought
prior to the plea hearing and hoped to avoid that aspect of the
plea deal with help from the court.
¶33 	Accordingly, Defendant has failed to persuade us that the
trial 	court 	clearly 	erred 	in 	finding 	that 	he 	understood 	the
contents of the plea affidavit before entering his no-contest pleas.
We therefore conclude that the court correctly relied on that
finding when arriving at its determination that Defendant’s
pleas were knowingly and voluntarily made.
C. 	The Plea Colloquy
¶34 	Finally, 	Defendant 	contends 	that 	the 	trial 	court’s
determination at the plea hearing that he entered his pleas
knowingly and voluntarily was erroneous as a matter of law
because the plea colloquy it held pursuant to rule 11 of the Utah
Rules 	of 	Criminal 	Procedure 	was 	“fundamentally 	flawed.”
Ultimately, we conclude that Defendant’s argument is foreclosed
by our Supreme Court’s decision in State v. Alexander, 2012 UT
27, 279 P.3d 371. We do recognize, however, that the court’s
exchange was far from the model colloquy envisioned by rule 11.
Judge Harris, who served as a district court judge before joining
this court, elaborates on the deficiencies in the colloquy in his
separate opinion, joined in by Judge Mortensen, who likewise
previously served as a district court judge.
¶35 	“In order to assist courts in determining whether a plea is
knowingly and voluntarily made,” our Supreme Court “created
rule 11.” Id. ¶ 24. The rule is a “prophylactic measure,” which

State v. Smith
20150736-CA 	16 	2018 UT App 144
provides, among other things, that the trial court may not accept
a guilty or no contest plea unless it finds that the defendant
entered it “‘voluntarily’” and with knowledge of his rights and
“‘the 	nature 	and 	elements 	of 	the 	offense.’” 	Id.
¶¶ 	17–18 	(quoting 	Utah 	R. 	Crim. 	P. 	11(e)(2), 	(e)(4)(a)).
“[C]ompliance with rule 11 creates a record demonstrating that
the defendant was informed of important constitutional rights.”
Id. ¶ 17.
¶36 	Defendant maintains that the colloquy undertaken by the
trial court pursuant to rule 11 was deficient because it “was not
an in-depth exchange.” In particular, Defendant faults the court
for failing to specifically refer to the various rights cited by rule
11, including his right to be advised of the “maximum sentence”
to which his pleas would expose him. See Utah R. Crim. P.
11(e)(5). And while Defendant concedes that rule 11 may be
satisfied by reference to a written statement during the plea
colloquy, he argues that, in this case, the trial court did not
effectively incorporate the contents of the plea affidavit into the
record. It was not enough, he argues, that the court asked him
whether he had been given “enough time to speak with” his
attorney about the affidavit. Rather, the court should have asked
him, in direct and explicit terms, whether he had read and
understood the entire affidavit prior to the hearing. See State v.
Maguire, 830 P.2d 216, 218 (Utah 1991) (“The record . . . must
contain a basis for [the trial court’s rule 11] findings, but that
record 	may 	reflect 	such 	a 	basis 	by 	multiple 	means,
e.g., . . . contents of a written affidavit that the record reflects was
read, understood, and acknowledged by defendant and the court[.]”)
(emphasis added).
¶37 	These points are well taken. As the concurring opinion
explains in greater detail, the prophylactic purposes of rule 11
would have been better served by a more thorough inquiry.
Nevertheless, “[a]lthough rule 11 provides guidance for the
entry of [a] plea[], any attempt to withdraw that plea is governed
by statute.” Alexander, 2012 UT 27, ¶ 19 (footnote omitted). In
Alexander, the Utah Supreme Court emphasized that under Utah

State v. Smith
20150736-CA 	17 	2018 UT App 144
Code section 77-13-6, “a plea may be withdrawn ‘only upon . . . a
showing that [the plea] was not knowingly and voluntarily made.’”
Id. ¶ 19 (alteration and emphases in original) (quoting Utah
Code § 77-13-6(2)(a)). Accordingly, “a violation of rule 11 during
the 	plea 	hearing” 	does 	not 	“automatically 	render[] 	a 	plea
unknowing and involuntary.” Id. ¶ 27. See Utah R. Crim. P. 11(l)
(“Failure to comply with this rule is not, by itself, sufficient
grounds for a collateral attack on a guilty plea.”). Rather, to meet
their statutory burden, defendants seeking to withdraw their
pleas must show “that their pleas were not in fact knowingly and
voluntarily 	made.” 	Alexander, 	2012 	UT 	27, 	¶ 	27 	(emphasis
added).
¶38 	In the sections above, we have concluded that the court
did not clearly err in finding that Defendant entered his pleas
knowingly and voluntarily. Therefore, while we agree with
Defendant that the trial court’s plea colloquy left much to be
desired, we cannot agree that the court’s mistakes constituted
reversible error. Because Defendant has failed to convince us
that he satisfied his burden under Utah Code section 77-13-6, he
is not entitled to relief from the trial court’s decision.
CONCLUSION
¶39 	For the foregoing reasons, we conclude that the trial court
did 	not 	abuse 	its 	discretion 	in 	denying 	Defendant’s 	plea
withdrawal motion. Accordingly, we affirm.
HARRIS, Judge (concurring)
¶40 	I join in full in the excellent majority opinion in this case.
The trial court made a factual finding that Defendant’s no-
contest plea was knowingly and voluntarily given, and that
factual finding was amply supported by evidence in the record,
including sworn testimony offered by several witnesses at the
evidentiary hearing. Because the trial court properly found that
Defendant’s plea was knowing and voluntary, I agree that the

State v. Smith
20150736-CA 	18 	2018 UT App 144
court’s decision to deny Defendant’s motion to withdraw his
plea should be affirmed.
¶41 	I write separately, however, to further discuss the plea
colloquy between Defendant and the trial court in this case. As
the lead opinion acknowledges, the plea colloquy in this case
was “far from the model colloquy envisioned by rule 11.” See
supra ¶ 34 (citing Utah R. Crim. P. 11). Section (e) of that rule
contains eight separate subparts, and instructs trial courts that
they “may not accept” a plea until “the court has found” that the
requirements of all eight subparts are met. See Utah R. Crim. P.
11(e); 	see 	also 	id. 	11(l) 	(emphasizing, 	however, 	that 	strict
compliance with the rule’s requirements is not necessary so long
as “substantial rights” are not affected).
¶42 	Because there are so many specific requirements set forth
in rule 11, conducting a plea colloquy that substantially complies
with the rule’s requirements takes quite a bit of time. A court
intending to conduct a gold-plated plea colloquy—one that
would, orally and on the record, adequately cover each of rule
11’s 	eight 	requirements—would 	likely 	need 	to 	devote 	a
significant period of time to each such endeavor, even if the
colloquy goes smoothly, which it does not always do. And,
given 	the 	nature 	of 	modern 	criminal 	law-and-motion
calendars4—the most common context in which plea colloquies
arise—this is time that trial judges simply do not have.
4. 	Many 	Utah 	trial 	judges 	manage 	large 	law-and-motion
calendars each week, during which they accept pleas, impose
sentences, consider probation issues, and adjudicate various
pretrial motions. While these calendars vary from judge-to-judge
and week-to-week, it is not at all unusual for a trial judge to be
asked to handle over 100 cases on a single morning calendar,
then turn around and handle 50 to 75 more in the afternoon.
Given that each day contains only so many hours, it is no
wonder that trial judges are always looking—and justifiably
(continued…)

State v. Smith
20150736-CA 	19 	2018 UT App 144
¶43 	In an attempt to make the process more efficient, written
plea agreement forms have been developed that contain the
information required by rule 11. Indeed, rule 11 itself allows this,
specifically stating that the findings required by the rule “may be
based on questioning of the defendant on the record or, if used, a
written statement reciting these factors.” See Utah R. Crim. P.
11(e). The idea is that, if a defendant has taken the time to read
the plea agreement form (or have it carefully explained to him
by counsel) and has come to understand its contents, a busy trial
judge will not need to take the time in court, with dozens of
other cases waiting, to painstakingly go through each of the
requirements of rule 11 for each plea. See State v. Mora, 2003 UT
App 117, ¶ 19, 69 P.3d 838 (stating that “[a] sufficient [plea]
affidavit may be 	used to promote efficiency during a plea
colloquy”), disagreed with on other grounds by State v. Lovell, 2011
UT 36, ¶¶ 65–66, 262 P.3d 803. Instead, the trial court can
conduct 	a 	truncated 	plea 	colloquy 	designed 	primarily 	to
ascertain that the defendant is in a proper state of mind to make
a major decision like pleading guilty to a crime, and that the
defendant has read the plea agreement form (or had it carefully
explained to him) and has come to understand its contents.
¶44 	Of course, the efficacy of this system depends on two facts
being true: (1) that the plea agreement form really does contain
all of the information that rule 11 requires, and (2) that the
defendant really does understand the contents of the form. See
State v. Smith, 812 P.2d 470, 477 (Utah Ct. App. 1991) (stating
that, before a plea agreement form can be “incorporated into the
record,” the trial court “must conduct an inquiry to establish that
the defendant understands the [form] and voluntarily signed
it”); see also Mora, 2003 UT App 117, ¶ 20 (determining that the
plea agreement form “was not properly incorporated into the
record” where the trial court “made no inquiry into whether [the
(…continued)
so—for 	ways 	to 	streamline 	the 	management 	of 	these 	busy
calendars.

State v. Smith
20150736-CA 	20 	2018 UT App 144
defendant] had read, understood, and acknowledged” the form).
Indeed, rule 11 itself mandates that a written plea agreement
form may only be used “after the court has established that the
defendant has read, understood, and acknowledged the contents”
of the form. See Utah R. Crim. P. 11(e) (emphasis added); see also
State v. Collins, 2015 UT App 214, ¶ 7, 359 P.3d 664 (focusing on
whether the trial court had, during the plea colloquy, ascertained
whether 	the 	defendant 	“understood 	everything 	in 	the 	plea
affidavit” and whether the defendant “understood the resulting
proposed plea agreement”). In the process of accepting pleas, it
is crucial that trial courts take steps necessary to ascertain that
the 	defendant 	understands 	the 	contents 	of 	the 	written 	plea
agreement form.5
¶45 	In this case, Defendant raises no issue—at least not in a
timely manner, see supra ¶ 21 & n.1—with the terms of the
written plea agreement form itself. Instead, Defendant asserts
that his plea was not knowing and voluntary, because he claims
that he did not fully understand the terms of his plea before
agreeing to enter it. In order to resolve that question in this case,
the trial court found it necessary to schedule and hold a three-
hour evidentiary hearing, in which five witnesses testified, some
of whom traveled to Logan from Salt Lake City. As noted, I
agree that the trial court’s ultimate resolution of that question
should be affirmed.
¶46 	But I lament the fact that a separate evidentiary hearing
was 	required 	in 	this 	case, 	and 	that 	such 	a 	hearing 	was
apparently required, at least in part, because of infirmities in the
truncated plea colloquy conducted by the trial court. As noted,
there is nothing inherently wrong with a truncated plea colloquy
5. In cases where a particular defendant’s first language is
something other than English, or where a particular defendant
has literacy issues, this inquiry also requires taking steps to first
ascertain that the defendant can access the language of the
written plea agreement form.

State v. Smith
20150736-CA 	21 	2018 UT App 144
that asks the written plea agreement form to do most of the
heavy lifting. But the focus of any such truncated plea colloquy
should be on attempting to ascertain whether and to what extent
the defendant understands the plea agreement form. And in this
respect, the trial court’s plea colloquy was deficient.
¶47 	Defendant correctly points out that the trial court never
actually asked him whether he had read the plea agreement
form or whether he understood its contents.6 I can think of no
more important question to ask in a truncated plea colloquy that
intends, in an effort to save time on a busy calendar, to depend
heavily on the contents of the written form. And I can think of
no possible reason not to ask it.7
6. The trial court did ask Defendant if he was “thinking clearly”
that day, and if he had “consumed any alcohol or drugs” that
day that might impair his thinking or cloud his judgment.
Defendant answered in the negative. The trial court also asked
Defendant if he was aware that he was giving up “various
Constitutional rights,” referencing the plea agreement form, and
whether he understood “the penalties” associated with his plea.
Defendant responded in the affirmative. These are important
questions also, and the trial court was correct to ask them.
7. In other legal contexts, having an opportunity to read and
review a document—even where that opportunity is not taken—
might be sufficient to legally bind a party to the contents of a
document. But where a defendant is pleading guilty to a crime,
the mere fact that the plea agreement form was available for
defendant to peruse is by itself insufficient. See State v. Smith, 812
P.2d 470, 477 (Utah Ct. App. 1991) (stating that “if a[] [plea]
affidavit is used to aid Rule 11 compliance, it must be addressed
during the plea hearing” and the trial court “must conduct an
inquiry 	to 	establish 	that 	the 	defendant 	understands 	the
affidavit”). In this context, the defendant must not only have an
opportunity 	to 	read 	the 	form, 	the 	defendant 	must 	actually
(continued…)

State v. Smith
20150736-CA 	22 	2018 UT App 144
¶48 	Had that question been asked in this case, and had
Defendant answered in the affirmative, there may have been no
need for a separate evidentiary hearing in order to properly
adjudicate Defendant’s motion to withdraw his plea. See, e.g.,
Collins, 	2015 	UT 	App 	214, 	¶ 7 	(determining 	merely 	from
examination 	of 	a 	plea 	colloquy—in 	which 	the 	defendant
affirmatively answered the trial court’s question about whether
he understood the contents of the form—that the trial court’s
finding that the plea was knowing and voluntary should be
affirmed). The trial court’s failure to ask that question left it with
no 	direct 	record 	evidence—without 	holding 	the 	separate
evidentiary hearing—that Defendant understood the contents of
the plea agreement form. In order to be able to make the factual
finding necessary to adjudicate the motion to withdraw the plea,
the trial court had to convene a separate evidentiary hearing,
and rely (largely) upon testimony from Defendant’s former
attorney, who testified that she read the entire agreement to
Defendant, “word-for-word,” and that she spent “an incredible
amount 	of 	time” 	over 	a 	two-hour 	period 	going 	over 	the
agreement with Defendant “again and again and again.” Similar
evidence, however, could have and should have already been in
the record, if the court had asked Defendant, at the original plea
hearing, basic questions about his understanding of the contents
of the plea agreement form.
¶49 	In the end, the trial court reached the proper result. But its
path in arriving at that destination was unfortunately inefficient
and nonlinear. A more focused (but still truncated) plea colloquy
would have gone a long way toward streamlining this case and
making the process more efficient for all participants.
(…continued)
understand the contents of the form. See Utah R. Crim. P. 11(e)
(stating that a written plea agreement form may be used only if
“the 	court 	has 	established 	that 	the 	defendant 	has 	read,
understood, and acknowledged the contents” of the form).