District Court, Salt Lake Department The Honorable Elizabeth
A. Hruby-Mills No. 131903746
S. Cook, Attorney for Appellant.
D. Reyes and Marian Decker, Attorneys for Appellee.
David N. Mortensen authored this Opinion, in which Judges J.
Frederic Voros Jr. and Jill M. Pohlman concurred.
Robert Morgan Magness (Defendant) was charged with rape.
Defendant pled guilty to the lesser crime of forcible sexual
abuse. Prior to sentencing Defendant made a motion to
withdraw his guilty plea on the ground that it was not
knowingly and voluntarily made. The district court denied the
motion. We reverse and remand.
Defendant was charged with rape in April 2013. A preliminary
hearing was scheduled for two months later. On the day of the
hearing, Defendant waived his right to a preliminary hearing.
Defendant subsequently pled guilty to a lesser charge
pursuant to a plea agreement. The circumstances of that
waiver and plea are contested. Defendant claims that the
preliminary hearing was not knowingly and voluntarily waived
and his plea was not knowingly and voluntarily made because
he relied on misstatements from the prosecutor.
The defense attorney representing Defendant at the
preliminary hearing filed an affidavit outlining the events
of the preliminary hearing in support of Defendant's
motion to withdraw his guilty plea. As described in his
affidavit, the defense attorney initially intended to
question the victim and others at the preliminary hearing.
The defense attorney observed the prosecutor converse with
the victim and her friend at the preliminary hearing. The
prosecutor then approached the defense attorney and
"specifically told [the defense attorney] that the
complainant informed him that she did not want the defendant
to go to prison." Based on this information, the defense
attorney "abandoned" his plans for the preliminary
hearing, noting that in his experience "if a complainant
is favorable to my client, then it is very harmful . . . to
put that witness on the stand and cross-examine her as to
very personal and sensitive issues." After discussing
the matter with Defendant, the defense attorney informed the
court that Defendant would waive his right to a preliminary
In support of his motion to withdraw his plea, Defendant
asserted by affidavit the same points that the defense
attorney had asserted: the prosecutor conversed with the
victim and her friend at the preliminary hearing and then
approached him and the defense attorney and told them that
the victim "did not want [Defendant] to go to
A private investigator for Defendant also provided an
affidavit concerning the preliminary hearing. The private
investigator contacted the victim in January 2014 to discuss
the events that led to the rape charge. The private
investigator asserted, "She informed me that in her mind
the defendant had already entered a guilty plea based upon
her conversations with the prosecutor at the hearing she last
By contrast, the State asserts that the record shows the
prosecutor had no interaction with the victim at the
preliminary hearing. The State points to the statements made
by the prosecutor in the hearing wherein Defendant pled
guilty. There the prosecutor stated, "When we met
initially during the intake, her very first impression of the
case was actually she was not seeking prison at the time and
was fairly amenable to resolving the case . . . . Since that
time [she] has not communicated with the State at all,
although we've made multiple attempts to contact
Between the waiver of the preliminary hearing and
Defendant's plea, Defendant's counsel filed various
motions and requests, including a motion to suppress
evidence. All of these issues were set for hearing in January
2015. Instead of pursuing the motions and going to trial,
Defendant pled guilty to the lesser charge and the court
found that the plea was knowingly and voluntarily made. The
plea statement Defendant signed provided, "In exchange
for the Defendant's plea of guilty the prosecution agrees
that in the event the victim does not affirmatively insist
upon the prosecutor seeking a prison commitment that the
prosecutor will recommend probation and no prison." The
following statements were also made at the hearing:
[Defense Counsel]: [I]t is anticipated, your Honor, that in
exchange for this guilty plea, that as the prosecution has
heretofore indicated to the Court that unless the victim
affirmatively requests a commitment of prison for the
defendant's behavior, that the prosecution in this matter
will recommend no prison time, and will recommend probation
in some form.
[Prosecutor]: That is correct, your Honor. Our recommendation
is simply that we would honor the victim's wishes. If the
victim were asking for a prison sentence, we're not bound
to not recommend prison. If the victim is not seeking a
prison sentence, we will not go beyond her request. That
recommendation, however, does not bind the State in any way
as to jail . . . .
Defendant recited his memory of the plea hearing in his
[My attorneys] came to me and informed me that [the
prosecutor] had agreed to reduce the charge . . . . They also
said it would be likely I would not face any prison time
because [the prosecutor] had expressly confirmed with [my
attorneys] that the complainant in this case did not want me
to go to prison. . . . During the hearing with the court I
again heard [the prosecutor] state that the complainant did
not want a prison term for me even though he had been unable
to contact her for several months. Based upon his statement I
felt very good about my decision to enter into a guilty plea
in this case.
The subsequent report from Adult Probation and Parole
(AP&P) recommended a term of imprisonment and included a
statement from the victim that she wanted Defendant to go to
prison for at least two years to compensate for the time that
she had suffered as the case proceeded. The victim made a
similar statement at the sentencing hearing in March 2015.
Shortly after Defendant received the AP&P report, his
private investigator again contacted the victim by telephone.
He recorded the conversation, a certified transcript of which
Defendant included in his motion to withdraw his guilty plea.
The phone call included the following exchange:
[Private Investigator]: [I]nitially, when this whole thing
started and you had spoken with the district attorney and the
prosecutor . . . at a hearing they believe you said that you