Oliver v. State

2006 UT 60
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Gary Lee Oliver, 	No. 20050090
Plaintiff and Petitioner,
v.
F I L E D
State of Utah,
Defendant and Respondent. 	October 6, 2006
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Third District, Salt Lake
The Honorable Frank G. Noel
No. 020908646
Attorneys: 	Gary L. Oliver, Draper, pro se
Mark L. Shurtleff, Att’y Gen., Christopher D.
Ballard, Asst. Att’y Gen., Salt Lake City, for
respondent
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 	When he pleaded guilty to the murder of his wife, Gary
Oliver disclosed to the sentencing court that he had taken some
pills to help him sleep and cope with depression. 	He insisted,
however, that he understood the meaning and consequences of his
guilty plea. 	He later changed his mind and claimed that the
medicine he had taken made him incapable of entering a knowing
and voluntary plea and that he should be permitted to withdraw
it. 	The sentencing court and the court of appeals rejected
Mr. Oliver’s claims.
¶2 	We granted certiorari to determine whether the
sentencing court adequately assessed Mr. Oliver’s ability to
enter a knowing and voluntary plea in light of his disclosure
that he had taken pills to help him sleep and cope with
depression. 	For the reasons we articulated in State v.
Beckstead, 2006 UT 42, ¶¶ 18-21, 140 P.3d 1288, we conclude that

No. 20050090 	2
the sentencing court’s assessment was adequate and therefore
affirm the court of appeals.
FACTUAL AND PROCEDURAL HISTORY
¶3 	On November 10, 1994, Mr. Oliver entered his guilty
plea to murder. 	In the course of pleading guilty, Mr. Oliver
signed an affidavit in which he stated, “I am not presently under
the influence of any drug, medication or intoxicants which impair
my judgment.” 	Mr. Oliver’s counsel also attested to his mental
and physical competence. 	The plea colloquy in which the
sentencing court judge engaged Mr. Oliver and his counsel
included the following exchange:
THE COURT: 	Are you presently under the
influence of any alcohol or drugs of any
kind?
MR. OLIVER: 	No, sir.
Q: 	Have you taken anything in the last
twenty-four hours?
A: 	Only some pills over in the jail--
telpolin--
Q: 	What is the--
A: 	To help me sleep.
MR. ATHAY: 	They affect your ability to
think?
MR. OLIVER: 	I don’t think so.
Q: 	They affect your ability to make
decisions?
A: 	No.
Q: 	Do you understand what we’re doing
here today?
A: 	Yeah. 	Yeah.
Q: 	You and I have spoken about this
plea on numerous occasions, have we not?

3 	No. 20050090
A: 	Uh-huh.
Q: 	And at any time have the pills
affected your judgment in deciding whether to
enter this plea?
A: 	No.
THE COURT: 	Do you feel like you were
under the influence of these pills right now?
You can understand what it is that I have
told you?
MR. OLIVER: 	No, I understand. 	I
understand.
Q: 	Do you have any questions about
these proceedings so far, Mr. Oliver?
A: 	No.
MR. ATHAY: 	May I ask a couple of other
questions?
THE COURT: 	Yes, uh-huh--
MR. ATHAY: 	They give you these to
control mood swings that you have?
MR. OLIVER: 	I guess that’s--I told them
I couldn’t sleep so they gave me that stuff.
I was depressed.
Q: 	That been as a rule what occurred in
this case?
A: 	Yeah.
Q: 	And the depression and lack of sleep
not something you were concerned about prior
to this event occur[r]ing?
A: 	No.
Q: 	And those pills were given to alter
the moods that you had found yourself in; is
that correct?

No. 20050090 	4
A: 	Yes.
¶4 	The sentencing court accepted Mr. Oliver’s plea and
subsequently sentenced him to serve five years to life in the
Utah State Prison. 	In 2002, Mr. Oliver filed a petition for
post-conviction relief alleging, among other things, that he had
consumed Nortriptaline, a psychotropic drug, shortly before
entering his plea. 	He claimed that this drug rendered him unable
to comprehend the plea proceedings, making his plea invalid under
rule 11 of the Utah Rules of Criminal Procedure because it was
not knowing and voluntary.
¶5 	The post-conviction court dismissed the petition as
untimely and also found that Mr. Oliver’s rule 11 claim failed as
a matter of law. 	The court of appeals affirmed.
ANALYSIS
¶6 	When a defendant enters a guilty plea, the sentencing
court engages in a “rule 11 colloquy” with the defendant in order
to “establish that the defendant’s guilty plea is truly knowing
and voluntary and establish on the record that the defendant
knowingly waived his or her constitutional rights.” 	State v.
Visser, 2000 UT 88, ¶ 11, 22 P.3d 1242 (internal quotation marks
omitted). 	Therefore, the question we now face is what a
sentencing judge must do to ensure that a plea is knowing and
voluntary when the defendant has taken medicine to aid sleep and
control moods.
¶7 	We begin with the principle that “[t]he use of
narcotics does not per se render a defendant incompetent to stand
trial, nor, presumably, to plead guilty.” 	Manley v. United
States, 396 F.2d 699, 700 n.2 (5th Cir. 1968) (emphasis in
original) (citations omitted). 	It is, of course, the drug’s
effect and not the mere presence of the drug that matters. 	Thus,
Mr. Oliver
would be entitled to vacation of his plea and
conviction if he proved that his mental
faculties were so impaired by drugs when he
pleaded that he was incapable of full
understanding and appreciation of the charges
against him, of comprehending his
constitutional rights and of realizing the
consequences of his plea.
United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970).

5 	No. 20050090
¶8 	The challenge posed by this case is to determine what a
sentencing judge must do to ensure that the drug ingested by a
defendant has not appreciably impaired his or her power to
understand the meaning and consequences of admitting guilt. 	The
difficulty of meeting this challenge is diminished substantially
by our recent encounter in State v. Beckstead, 2006 UT 42, 140
P.3d 1288, with the same issue, albeit with a different
drug--alcohol. 	There, we refused to require a judge taking a
rule 11 plea from a defendant who had been drinking to follow any
prescribed script in aid of ascertaining whether the alcohol had
rendered the defendant incapable of entering a guilty plea. 	Id.
¶ 16. 	We outlined, however, several general principles to assist
judges who are faced with the defendant’s possible drug
impairment in a plea hearing. 	First among these is the
injunction that a sentencing judge pursue a meaningful engagement
with a defendant during the plea colloquy. 	Id. ¶ 18. 	Such an
engagement with a defendant may feature many different approaches
to accomplishing the task of reaching a conclusion about a
defendant’s capability to enter a knowing and voluntary plea.
The Beckstead principles are equally applicable here.
¶9 	Just as we grant a great deal of deference for factual
determinations at trial because of the fact finder’s vantage
point in relation to witnesses and evidence, we believe that in
most instances sentencing judges can best determine how to
ascertain whether a plea is knowing and voluntary based on the
specific interactions they have with the defendant before them.
¶10 	Mr. Oliver suggests that if it is known that a
defendant has consumed a psychotropic drug, the court must hold a
hearing and invite the introduction of expert testimony to
determine the drug’s effect on the defendant. 	We agree with
Mr. Oliver’s assertion that when the defendant confirms that he
has recently taken a drug, the court must inquire further into
the defendant’s capacity. 	See Miranda-Gonzalez v. United States,
181 F.3d 164, 166 (1st Cir. 1999). 	This requirement, however,
does not sweep as broadly as Mr. Oliver would like it to. 	As
with Beckstead, we refuse to mandate specific procedures.
Instead, we focus on whether the methods employed by the
sentencing court resulted in a meaningful engagement between the
court and the defendant that allowed the court to make an
informed decision.
¶11 	“The critical question is whether the drugs--if they
have a capacity to impair the defendant’s ability to plea--have
in fact done so on this occasion.” 	United States v. Savinon-
Acosta, 232 F.3d 265, 268 (1st Cir. 2000). 	The court can make
this determination most effectively by interacting with the

No. 20050090 	6
defendant himself, by asking him questions concerning his mental
state and ability to understand the procedures, and then weighing
both the content of the responses offered as well as the demeanor
and general coherence of the defendant that can be gleaned from
his responses. 	In some instances, it may be beneficial for the
court to ask specifically about the type and amount of drug
consumed. 	But “[j]udges are not pharmacists or doctors,” id., so
depending on the circumstance, that information may or may not be
beneficial to the court. 	Therefore, we leave it up to the
court’s sound discretion to determine whether to pursue that line
of inquiry.
¶12 	Mr. Oliver argues that expert testimony is necessary to
determine a defendant’s capacity. 	We disagree. 	As with
questions concerning the types and amount of drugs consumed, an
expert may or may not be beneficial to the court. 	While experts
will likely be capable of describing the general effect of a
drug, that is no guarantee that the particular drug at issue had
the particular effect on the defendant at the particular time
that he was before the court. 	Such opinions would be of lesser
importance than the actual observations of the court concerning
whether the defendant in this case, as opposed to people
generally, is capable of making a knowing and voluntary plea.
¶13 	In this instance, the sentencing court’s investigation
was sufficient to meet the standard outlined above. 	The court
asked about the purpose of the drug, how it affected Mr. Oliver,
and whether he understood the proceedings. 	Mr. Oliver’s counsel,
with the approval of the court, then asked more in-depth
questions about why Mr. Oliver took the pills and their effect on
him. 	Mr. Oliver’s answers were all coherent, lucid, and directly
responsive to the questions asked. 	This interaction satisfies
the requirement that the court’s decision be based upon
meaningful engagement with the defendant. 	Furthermore, when
asked repeatedly if he understood the proceedings or if the drugs
affected his ability to understand, he consistently stated that
he did understand and that the medication had in no way affected
his ability to make a knowing and voluntary plea. 	While the
defendant’s own assurances of his capacity are not conclusive,
“[c]ourts have commonly relied on the defendant’s own assurance
(and assurances from counsel) that the defendant’s mind is
clear.” 	Id. at 269.
¶14 	Our deference in this case is even greater than that
allotted in Beckstead, 2006 UT 42, 140 P.3d 1288. 	While the
presence of alcohol in a defendant’s system can only decrease his
ability to enter a knowing and voluntary plea, that is not
necessarily the case with prescription medication. 	In most

7 	No. 20050090
instances, including this one, when a mood-altering drug is given
to a defendant by a physician, it is to improve the defendant’s
cognitive abilities. 	In other words, the fact that a defendant
has undergone a medical evaluation and is receiving medication to
treat a psychological infirmity is often evidence weighing in
favor of a finding that the defendant is capable of entering a
knowing and voluntary plea.
CONCLUSION
¶15 	We conclude that the sentencing court acted
appropriately in establishing Mr. Oliver’s ability to enter a
guilty plea. 	If during such a plea, the sentencing court
discovers that the defendant has taken psychotropic drugs, it
must meaningfully engage the defendant in order to establish that
the plea being entered is knowing and voluntary, but the court
enjoys significant discretion in the method it will use to do so.
Therefore, we affirm the judgment of the court of appeals.
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¶16 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.