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State v. Magness

Court of Appeals of Utah

July 28, 2017

State of Utah, Appellee,
v.
Robert Morgan Magness, Appellant.

         Third District Court, Salt Lake Department The Honorable Elizabeth A. Hruby-Mills No. 131903746

          Craig S. Cook, Attorney for Appellant.

          Sean D. Reyes and Marian Decker, Attorneys for Appellee.

          Judge David N. Mortensen authored this Opinion, in which Judges J. Frederic Voros Jr. and Jill M. Pohlman concurred.

          OPINION

          MORTENSEN, Judge.

         ¶1 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.

         BACKGROUND

         ¶2 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.

         ¶3 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 hearing.

         ¶4 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 prison."

         ¶5 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 attended."[1]

         ¶6 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 her."[2]

         ¶7 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 . . . .[3]

         ¶8 Defendant recited his memory of the plea hearing in his affidavit:

[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.[4]

         ¶9 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.

         ¶10 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 ...

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