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Berrett v. State

Court of Appeals of Utah

April 5, 2018

Sherrell Berrett, Appellant,
v.
State of Utah, Appellee.

          Second District Court, Farmington Department The Honorable John R. Morris No. 150700744

          Nathan A. Crane and Dani N. Cepernich, Attorneys for Appellant

          Sean D. Reyes and Mark C. Field, Attorneys for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.

         

          TOOMEY, JUDGE.

         ¶1 After pleading guilty to one count of securities fraud and one count of sale of an unregistered security, Sherrell Berrett seeks to withdraw his guilty plea, contending that his counsel provided him with constitutionally ineffective assistance. As a condition of Berrett's plea agreement, the State agreed to recommend that he be placed on probation if he paid a significant portion of the restitution by the time of sentencing. Berrett also waived his right to be sentenced within forty-five days[1] and was given six months to make payments toward restitution. Berrett had not made the payments by the sentencing date. Because he failed to pay the court-ordered restitution, the State did not recommend probation, and the court sentenced him to prison. Almost one year after he was sentenced, Berrett filed a petition under the Post-Conviction Remedies Act (the PCRA), asserting that he had received ineffective assistance of counsel. The State filed a motion for summary judgment contending that (1) Berrett's petition was procedurally barred because he did not first move to withdraw his guilty plea, and (2) even if the claim was not procedurally barred, he did not demonstrate that he was entitled to post-conviction relief. In opposition, Berrett disputed the State's assertions that his petition was procedurally barred and requested the court conduct an evidentiary hearing on his claim of ineffective assistance of counsel. The district court determined that Berrett's petition was procedurally barred under the PCRA and granted the State's motion for summary judgment; the court did not address the merits of Berrett's ineffective assistance of counsel claim. Berrett appeals the court's decision.

         ¶2 We disagree that Berrett's ineffective assistance of counsel claim was procedurally barred, but we affirm the district court's ruling on the alternative ground that Berrett failed to show that his counsel's allegedly deficient performance prejudiced his defense.

         BACKGROUND

         ¶3 In mid-2013, the State charged Berrett, then a seventy-five-year-old man, with six counts of securities fraud (second degree felonies); four counts of theft (second degree felonies); one count of sale of an unregistered security (a third degree felony); one count of unlicensed investment advisor activity (a third degree felony); and one count of pattern of unlawful activity (a second degree felony).[2]

         ¶4 Berrett's neighbor (Defense Counsel) was an attorney who assisted Berrett in his interactions with the Utah Division of Securities during its investigation of Berrett. Two days after the criminal charges were filed against Berrett, Defense Counsel entered an appearance to represent him in this case.

         ¶5 Six weeks after the State filed charges, Defense Counsel and the State reached a resolution. If Berrett pleaded guilty to one count of securities fraud and one count of sale of an unregistered security, and agreed to pay $1, 308, 364.73 in complete restitution to the victims, with $600, 000 as court- ordered restitution, [3] the State would dismiss the remaining charges. The State also agreed that if Berrett paid $400, 000 toward restitution by the time of sentencing, it would recommend that he be placed on probation for sixty months;[4]but if not, the State would ask the district court to sentence him on the felony charges entered, and would reserve the right to seek either a concurrent or consecutive prison sentence. Based on that agreement, Berrett pleaded guilty in December 2013.

         ¶6 At the change-of-plea hearing, Defense Counsel requested that sentencing be extended six months to allow time for a presentence investigation report (the PSI report) to be prepared and to give Berrett an opportunity to start paying restitution before sentencing in accordance with the terms of the plea agreement. Defense Counsel further explained that Berrett was going to review his records and determine whether he had already paid some restitution, and if so, the prosecutor would give him credit for those payments. After these explanations, Defense Counsel presented the district court with a plea statement, with a three-page plea agreement attached, each of which Berrett, Defense Counsel, and the prosecutor signed.

         ¶7 The plea statement included: (1) a description of the charges, supporting facts, and the minimum and maximum punishment for each charge to which Berrett would be pleading guilty; (2) an assertion that Berrett had read the statement and understood the nature and elements of the charges and discussed them with Defense Counsel; (3) a statement that Berrett would waive certain constitutional rights by pleading guilty;[5] (4) an acknowledgement that he could be subject to the maximum sentence that may be imposed for each crime to which he was pleading guilty; (5) a disclaimer that the court would not be bound by any sentencing recommendation from Defense Counsel or the prosecutor; (6) a certification that Berrett had read, understood, and voluntarily signed the plea statement and plea agreement, and that no one made other promises outside of the plea agreement to him; (7) an acknowledgement that if he wanted to withdraw his guilty plea, he would have to file a motion before sentencing; (8) an affirmation that he was "satisfied with the advice and assistance of [his] attorney"; and (9) an acknowledgment that any challenge to his guilty plea after sentencing must be made under the PCRA.

         ¶8 The plea agreement detailed: (1) the charges to which Berrett would plead guilty; (2) the amount of complete and court-ordered restitution; (3) a stipulation postponing sentencing for six months to allow Berrett time to collect and make payments toward the court-ordered restitution; (4) an agreement that if Berrett "[paid] $400, 000 toward his court-ordered restitution . . . on or before sentencing, the State [would] recommend that [he] be placed on probation for a period of sixty (60) months"; and (5) a statement on the third page, directly above Berrett's signature, that if Berrett was "unable to pay the $400, 000 toward the 'court-ordered' restitution at the time of sentencing, the State [would] ask the Court to sentence [Berrett] on the felony charges as entered, and [it] may seek a concurrent or consecutive prison sentence."

         ¶9 Before the district court accepted Berrett's guilty plea, it engaged in a colloquy with him about the plea statement and plea agreement he had signed. The court specifically asked whether he was prepared to plead as indicated; whether he was doing so freely and voluntarily; whether he read and understood the plea statement; whether his questions had been answered; and whether what Defense Counsel put on the record was consistent with his understanding. Berrett gave an unequivocal affirmative reply to each of these questions. The court found the factual recitation sufficient and accepted Berrett's guilty plea.

         ¶10 During the six months following the change-of-plea hearing, Berrett did not move to withdraw his guilty plea, nor did he make any payments toward restitution. Adult Probation and Parole prepared and submitted a PSI report to the court for the sentencing hearing.

         ¶11 The PSI report included, among other things, a sentencing recommendation to the district court; sentencing guidelines based on Berrett's lack of criminal history and the category of the offenses to which he pleaded guilty; and the investigator's recommendation. The recommendation in the report adopted the terms of the plea agreement entered between Berrett and the State, and it included some additional terms and conditions. Given Berrett's lack of criminal history and the category of his crimes, the guidelines suggested he serve 180 days in the county jail (ninety days for each offense) and then be placed on probation. Finally, the investigator commented that "Berrett reported he has tried, without success, to raise $400, 000 to pay toward restitution as he had hoped."

         ¶12 At the sentencing hearing, [6] Berrett told the court that he had tried to make restitution payments but was unable to do so. Defense Counsel explained that he and Berrett had spent many hours attempting to provide an evidentiary foundation for cases pending against people Berrett had entrusted with his investors' funds in an attempt to recoup the lost money. Defense Counsel argued Berrett should not be sent to prison. Consistent with the plea agreement, the State recommended that the court sentence Berrett to prison because he had not made any payments toward restitution. The district court sentenced Berrett to one-to-fifteen years in prison for securities fraud and zero-to-five years in prison for the sale of an unregistered security, and it ordered the sentences to run concurrently.

         ¶13 Berrett filed his PCRA petition in the district court in July 2015. He contended that Defense Counsel provided ineffective assistance that resulted in the entry of a guilty plea that was not knowing and voluntary. Berrett first argued that Defense Counsel was ineffective for not subjecting the State's case to meaningful adversarial testing. Second, Berrett argued that Defense Counsel did not investigate the case or interview witnesses. Third, Berrett argued that Defense Counsel misrepresented to him that he would be ...


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