State v. Aitken

2022 UT App 21
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BRUCE M ATTHEW A ITKEN ,
Appellant.
Opinion
No. 20200420-CA
Filed February 17, 2022
Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 171600173
Emily Adams, Freyja Johnson, and Cherise M.
Bacalski, Attorneys for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES GREGORY K. O RME and JILL M. POHLMAN
concurred.
CHRISTIANSEN FORSTER, Judge:
Based 	on 	the 	advice 	of 	his attorney, 	Bruce 	Matthew
Aitken pleaded guilty to three counts of attempted forcible
sexual 	abuse 	and 	two 	counts 	of 	sexual 	battery. 	Prior 	to
sentencing, Aitken moved to withdraw his guilty pleas based on
a 	claim 	that 	his 	defense 	counsel 	(Plea 	Counsel) 	provided
constitutionally ineffective assistance by advising him to plead
guilty without sufficient investigation. The district court was
unpersuaded 	by 	Aitken’s 	claim 	and 	denied 	the 	motion 	to
withdraw. Aitken appeals, and we affirm.

State v. Aitken
20200420-CA 	2 	2022 UT App 21
BACKGROUND
Aitken was employed as a nurse at a rehabilitation center
where he supervised several certified nursing assistants (CNAs).
According 	to 	Aitken, 	there 	existed 	a 	friendly 	and 	playful
atmosphere at the workplace between the other employees and
him. Despite the supposedly friendly atmosphere, six CNAs
alleged Aitken had engaged in inappropriate sexual conduct
while at work, which included touching their breasts both on top
of 	and 	under 	their 	clothing 	on 	several 	occasions 	and
intentionally 	walking 	in 	on 	one 	CNA 	while 	she 	used 	the
restroom. None of these incidents was reported to management
at the time they occurred, but the CNAs created a “buddy
system” so they could avoid being left alone with Aitken. After
Aitken grabbed a CNA by the throat while simultaneously
groping her breast, the CNA reported Aitken’s behavior to
administrators, who reported the incident to law enforcement.
As part of the investigation, an officer spoke with Aitken as well
as several CNAs who had come forward with reports of Aitken’s
abuse. Aitken admitted to grabbing one CNA by the throat and
“inadvertently” groping another’s breast during the reenactment
of a patient’s fall.
The State filed charges against Aitken: four counts of
forcible sexual abuse, eighteen counts of sexual battery, and one
count of sexual abuse of a minor. At the preliminary hearing, the
investigating 	officer 	and 	five 	of 	the 	CNAs 	testified 	and
underwent 	cross-examination. 	Aitken’s 	admissions 	to 	the
investigating officer were also entered into evidence.
With the assistance of Plea Counsel, Aitken engaged in
plea negotiations with the State and ultimately pleaded guilty to
three counts of attempted forcible sexual abuse and two counts
of sexual battery. In exchange, the State agreed to dismiss the
remaining charges and to recommend that no prison term be
imposed. During the change of plea hearing, in support of his
pleas, Aitken executed and submitted a Statement of Defendant

State v. Aitken
20200420-CA 	3 	2022 UT App 21
in 	Support 	of 	Guilty 	Plea 	and 	Certificate 	of 	Counsel 	(the
Statement), wherein he acknowledged that he had enough time
to consult with Plea Counsel, was “satisfied with his advice and
assistance,” and understood that by pleading guilty, he would
be 	admitting 	that 	he 	committed 	the 	crimes 	listed 	in 	the
Statement. The district court engaged in the colloquy required
under rule 11 of the Utah Rules of Criminal Procedure to ensure
Aitken’s guilty pleas were entered into knowingly, voluntarily,
and with the advice and assistance of counsel. Aitken did not
challenge the factual recitation contained in the Statement or
raise 	any 	uncertainties 	or 	concerns 	about 	Plea 	Counsel’s
representation. 	Afterward, 	the 	court 	accepted 	and 	entered
Aitken’s pleas of guilty.
Before the sentencing hearing, and with the assistance of
new counsel, Aitken filed a motion to withdraw his guilty pleas.
He argued that his pleas were not knowing and voluntary
because 	Plea 	Counsel 	had 	performed 	ineffectively 	by 	not
“diligently investigat[ing]” the case and locating a potential
defense witness (Witness). As a part of his motion, Aitken
provided a report of an interview between a private investigator
and 	Witness 	wherein 	Witness 	claimed 	that 	she 	was 	never
contacted by Plea Counsel and explained what she would have
said 	had 	she 	been 	contacted. 	Witness, 	Aitken’s 	former 	co-
worker, averred that if called at trial, she would testify that she
never saw a single incident take place similar to what the CNAs
were alleging. She would also testify that she had learned that a
nurse supervisor at the rehabilitation center had called the
employees for a meeting regarding Aitken, “pressured” the
employees, and asked “all of them to think of any instances
where [Aitken] may have been inappropriate and report it.”
According to Witness, the nurse supervisor told those attending
the meeting “they were either with their co-workers or against
them.” An employee from the rehabilitation center told Witness
that she felt “coerced” to report misconduct based on the nurse
supervisor’s statements during the meeting. Witness told the
investigator that she felt the nurse supervisor’s pressure to

State v. Aitken
20200420-CA 	4 	2022 UT App 21
report abuse was “completely inappropriate.” Further, had she
been called at trial, Witness would provide commentary on the
personal lives of the CNAs and state that she had never felt
unsafe around Aitken and that he was completely innocent.
Based on Witness’s information, Aitken argued to the
district court that had he known of Witness’s statement, he
would not have pleaded guilty but would have gone to trial
instead. But nothing in Witness’s statement demonstrated that
she was present at the time of the assaults, that Witness was
employed at the rehabilitation center during the relevant time
period, or whether Aitken made Plea Counsel aware of Witness
and her potential testimony. In addition, some of Witness’s
proffered testimony contradicted Aitken’s own admissions; she
claimed that the fall reenactment episode did not involve the
CNA who reported it, while Aitken admitted that it did involve
that CNA.
After briefing by the parties, the district court denied
Aitken’s 	motion 	to 	withdraw 	his 	guilty 	pleas, 	finding 	that
Aitken 	had 	failed 	to 	prove 	either 	prong 	of 	an 	ineffective
assistance 	of 	counsel 	claim 	as 	required 	by 	Strickland 	v.
Washington, 466 U.S. 668 (1984). Specifically, the court concluded
that there was no deficient performance because Plea Counsel’s
investigation 	uncovered 	at 	least 	two 	witnesses 	who 	gave
statements and evidence in favor of Aitken. The district court
stated,
That [Plea Counsel] did not find one witness . . . is
not deficient. Particularly when that statement is
contradicted by the Defendant’s own admissions,
contains 	hearsay 	and 	other 	inadmissible
statements, and claims pressure to write what had
happened (not false statements) by women who
did not provide witness statements.

State v. Aitken
20200420-CA 	5 	2022 UT App 21
The district court also found Plea Counsel did not perform
deficiently because effective counsel “would know that a wise
defense attorney would not have [their] trial strategy include a
witness who has critical statements which are contradicted by
the Defendant’s own video recorded statements.”
The district court also concluded that even if Plea Counsel
performed deficiently in failing to find Witness, there was no
prejudice to Aitken because the “strength of the evidence against
Defendant 	[was 	so] 	substantial” 	that 	it 	would 	have 	been
“irrational” for Aitken to reject the State’s plea offer:
As set forth in the preliminary hearing, there were
six women who testified as to [D]efendant’s sexual
abuse. The emotional toll on some of the witnesses
was apparent in the court room and would be
noticed by a jury. Defendant was present for the
hearing and heard the testimony, saw his capable
attorney 	make 	efforts 	to 	poke 	holes 	in 	the
witnesses’ 	testimonies 	and 	their 	continued
affirmation of his guilt. [Plea Counsel] . . . brought
up that the witnesses were told by administration
to 	disclose 	the 	abuse. 	Defendant’s 	recorded
admissions 	were 	admitted 	establishing 	that 	he
grabbed [one CNA] by the throat, unlocked the
women’s bathroom door and walked in on her
without a valid reason, and grabbed the breast of
[another CNA] during the demonstrated fall. This
evidence is substantial compared to one witness
who provides contradictory statements.
Further, the court found no prejudice because Aitken “received
the benefit of having twenty serious charges dismissed and the
agreement that the State would stipulate 	to no prison” by
accepting the plea offer.

State v. Aitken
20200420-CA 	6 	2022 UT App 21
ISSUE AND STANDARDS OF REVIEW
Aitken challenges the district court’s denial of his motion
to withdraw his guilty plea, arguing that Plea Counsel provided
ineffective assistance of counsel by advising him to accept the
State’s offer and plead guilty without conducting a thorough
investigation and without the benefit of Witness’s information.
“We review the denial of a motion to withdraw a guilty plea
under an abuse of discretion standard, incorporating a clearly
erroneous standard for findings of fact and reviewing questions
of law for correctness.” State v. Walker, 2013 UT App 198, ¶ 8, 308
P.3d 573 (quotation simplified). And when a defendant seeks to
withdraw a guilty plea based on a claim of ineffective assistance
of 	counsel, 	we 	apply 	the 	standard 	of 	review 	set 	forth 	in
Strickland v. Washington, 466 U.S. 668 (1984). That is, “ineffective
assistance of counsel claims present a mixed question of fact and
law.” State v. Templin, 805 P.2d 182, 185–86 (Utah 1990). “We
review a trial court’s application of the law to the facts for
correctness and, if applicable, we review the court’s findings of
fact for clear error.” State v. Torres-Orellana, 2021 UT App 74,
¶ 26, 493 P.3d 711, cert. granted 493 P.3d 711 (Utah 2021). When
we 	review 	an 	ineffective 	assistance 	claim 	that 	has 	been
considered first by the district court, we review the district
court’s decision nondeferentially. See Menzies v. Galetka, 2006 UT
81, ¶¶ 4, 56–58, 150 P.3d 480 (“[I]t is unnecessary to grant
deference to the district court in the minority of cases where an
ineffective assistance of counsel claim is first raised before that
court.”).
ANALYSIS
Before 	the 	district 	court, 	Aitken 	alleged 	that 	Plea
Counsel’s failure to undertake an adequate investigation before
advising him to plead guilty precluded him from entering his

State v. Aitken
20200420-CA 	7 	2022 UT App 21
pleas knowingly and voluntarily.1 Aitken sought to withdraw
his 	guilty 	pleas 	after 	learning 	about 	Witness’s 	potential
testimony. Under Utah law, a criminal defendant is allowed to
withdraw a guilty plea prior to sentencing “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). Aitken
argues that the district court erred in rejecting his claim of
ineffective assistance of counsel as a basis for withdrawing his
guilty pleas. Because Aitken’s argument—that he did not enter
his pleas knowingly and voluntarily—is predicated solely on his
claim of ineffective assistance of counsel, our determination of
Aitken’s 	ineffective 	assistance 	of 	counsel 	claim 	essentially
resolves his contention that the district court erred in denying
his motion to withdraw. See State v. Momoh, 2018 UT App 180,
¶ 10, 436 P.3d 334.
“Where, as here, a defendant is represented by counsel
during the plea process and enters his plea upon the advice of
1. Aitken spends several pages of his brief arguing that the
district court misapplied State v. Archuleta, 2019 UT App 136, 449
P.3d 223, in denying his motion. In its order, the district court
found Aitken failed to prove either element of the Strickland test
and added, as a supplemental reason for denying the motion,
that this court’s decision in Archuleta precluded a post-plea
discovery of evidence from supporting the withdrawal of a plea.
Aitken 	asserts 	that 	this 	case 	is 	distinguishable 	because 	his
argument was that Plea Counsel should have undertaken a more
thorough investigation and discovered Witness prior to advising
him to plead guilty, whereas the Archuleta defendant never
asserted that his trial counsel could or should have discovered
the 	evidence 	earlier. 	Because 	we 	affirm 	the 	district 	court’s
determination that Aitken suffered no prejudice based on Plea
Counsel’s 	alleged 	deficiencies 	and 	that 	Aitken’s 	plea 	was
knowing and voluntary based on the advice of Plea Counsel, we
need not address this argument.

State v. Aitken
20200420-CA 	8 	2022 UT App 21
counsel, the voluntariness of the plea 	depends on whether
counsel’s advice was within the range of competence demanded
of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56
(1985) 	(quotation 	simplified). 	The 	“two-part 	Strickland 	v.
Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel.” Id. at 58; see also Strickland v.
Washington, 	466 	U.S. 	668, 	688, 	694 	(1984). 	To 	demonstrate
ineffective assistance of counsel, a defendant must show (1) “that
counsel’s representation fell below an objective standard of
reasonableness” and (2) “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Hill, 474 U.S. at 57
(quotation simplified); see also State v. Scott, 2020 UT 13, ¶ 28, 462
P.3d 350.
In the context of guilty pleas, the first inquiry is whether
counsel performed deficiently. Hill, 474 U.S. at 58. The second
inquiry is whether there was a reasonable probability that, but
for counsel’s errors, the defendant “would not have pleaded
guilty and would have insisted on going to trial.” Arriaga v.
State, 2020 UT 37, ¶ 32, 469 P.3d 914 (quotation simplified); see
also Hill, 474 U.S. at 59. “A defendant’s inability to establish
either 	element 	defeats 	a 	claim 	for 	ineffective 	assistance 	of
counsel.” State v. Cruz, 2020 UT App 157, ¶ 17, 478 P.3d 631
(quotation simplified); see also Strickland, 466 U.S. at 700. Where it
is readily apparent from the record that a defendant suffered
no prejudice, “a court need not determine whether counsel’s
performance 	was 	deficient 	before 	examining 	the 	prejudice
suffered 	by 	the 	defendant 	as 	a 	result 	of 	the 	alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, . . . that
course should be followed.” Strickland, 466 U.S. at 697. We take
that approach here.
Aitken argues that but for Plea Counsel’s error in not
identifying and interviewing Witness, there was “a reasonable
probability” that he would not have accepted the State’s offer

State v. Aitken
20200420-CA 	9 	2022 UT App 21
and pleaded guilty, but would have instead gone to trial. But a
defendant must do more than simply make such a claim. Here,
Aitken must affirmatively establish prejudice by proving “that a
decision to reject the plea bargain would have been rational
under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372
(2010); see also Arriaga, 2020 UT 37, ¶ 32; Gray v. State, 2017 UT
App 93, ¶ 11, 400 P.3d 1081 (stating that “a defendant’s mere
allegation that he would have insisted on trial but for his
trialcounsel’s errors . . . is ultimately insufficient to entitle him
to 	relief” 	(quotation 	simplified)). 	“When 	making 	this
determination, [we] review the strength of the prosecutor’s case
as the best evidence of whether a defendant in fact would have
changed his plea and insisted on going to trial.” State v. Walker,
2013 UT App 198, ¶ 42, 308 P.3d 573 (quotation simplified).
We share the district court’s skepticism that Witness’s
potential testimony would have so altered the strength of the
State’s case or strengthened Aitken’s defense in any significant
way such that Aitken would have insisted on going to trial.
Importantly, Aitken did not establish that Witness had
firsthand knowledge of the specific acts of abuse. Witness’s
statement about a nurse supervisor “pressur[ing]” employees to
file reports against Aitken was inadmissible hearsay, as Witness
was not present at the alleged meeting. Witness’s information
about the allegations of abuse also would have contradicted
Aitken’s own recorded admissions. Witness claimed the fall
reenactment did not involve the particular CNA who reported
the incident, while Aitken admitted that it did involve that
person and that Aitken had groped the CNA during their
interaction, albeit “inadvertently.” Further, Witness’s subjective
assessment 	that 	she 	never 	felt 	unsafe 	around 	Aitken, 	her
assertion that he was completely innocent, and her commentary
on the habits and personalities of the CNAs were simply her
opinions 	and 	would 	have 	had 	little 	impact 	on 	the 	jury’s
determination of whether the abuse had occurred.

State v. Aitken
20200420-CA 	10 	2022 UT App 21
Moreover, 	the 	State 	presented 	a 	strong 	case 	at 	the
preliminary hearing. Five of the six CNAs offered in-person
testimony about Aitken’s sexual abuse, each providing mutually
corroborating evidence. The district court noted the “emotional
toll” of their testimony, which “was apparent in the court room
and would be noticed by a jury” should the case go to trial, and
described their testimony as “substantial” and “overwhelming.”
Aitken’s own admissions were also entered into evidence. The
district 	court 	found 	that 	Aitken 	“was 	present 	for 	the
[preliminary] hearing and heard the testimony, saw his capable
attorney make efforts to poke holes in the witnesses’ testimonies
and their continued affirmation of his guilt.”
We are also not convinced that rejecting the State’s plea
bargain would have been rational under the circumstances of
this case. See Padilla, 559 U.S. at 372. After hearing the evidence
presented at the preliminary hearing, the district court bound
over Aitken on twenty-five separate felony and misdemeanor
counts, including four second-degree felony charges. As a part of
the plea bargain, the State agreed to let Aitken plead guilty to
three third-degree felony counts and two misdemeanor counts—
a significant reduction from the number of the original charges
and the severity of those charges. In addition, the State agreed to
dismiss the remainder of the charges and to recommend that no
prison term be imposed. Thus, Aitken has not persuaded us that
there is a reasonable probability that he would not have accepted
the offered plea bargain because pleading guilty significantly
reduced 	his 	exposure 	to 	potential 	incarceration 	and 	other
penalties.
In sum, even if Plea Counsel’s pre-plea investigation had
discovered 	Witness, 	we 	agree 	with 	the 	district 	court 	that
Witness’s information did 	not diminish the strength of the
State’s case in such a way that it would have been rational under
the circumstances for Aitken to reject the State’s plea offer.
Ultimately, the district court correctly determined that Aitken
failed to prove the prejudice prong of the Strickland ineffective

State v. Aitken
20200420-CA 	11 	2022 UT App 21
assistance of counsel test. He has therefore failed to establish that
any lack of investigation by Plea Counsel rendered his plea
unknowing and involuntary. Accordingly, he cannot show that
the district court abused its discretion by not permitting him to
withdraw his guilty plea. See Utah Code Ann. § 77-13-6(2)(a)
(LexisNexis 2017) (requiring a showing that a plea “was not
knowingly 	and 	voluntarily 	made” 	to 	support 	a 	plea
withdrawal).
CONCLUSION
We agree with the district court that Aitken failed to
demonstrate that based on Witness’s information, it would have
been rational for him to reject the plea deal offered by the State
and insist on going to trial. Accordingly, the district court
correctly assessed Aitken’s ineffective assistance of counsel claim
and did not abuse its discretion in denying Aitken’s motion to
withdraw his guilty pleas. As a result, we affirm.