District Court, Logan Department The Honorable Brian G.
Cannell No. 141100216
M. Perry, Attorney for Appellant
D. Reyes and Lindsey Wheeler, Attorneys for Appellee
Gregory K. Orme authored this Opinion. Judge David N.
Mortensen concurred. Judge Ryan M. Harris concurred, with
opinion, in which Judge David N. Mortensen joined.
Facing fourteen charges of sexual misconduct with children,
Defendant Cody C. Smith entered into a plea arrangement
whereby he pled no contest to two counts of aggravated sexual
abuse of a child. Before sentencing, Defendant moved to
withdraw his pleas. The trial court denied his motion and
proceeded to the sentencing stage. Defendant now appeals the
court's order denying his plea withdrawal motion. We
Defendant was charged with three counts of rape of a child,
six counts of object rape, one count of criminal
solicitation, one count of forcible sexual abuse, and three
counts of unlawful sexual activity with a minor. He was bound
over on all charges, and the case proceeded to trial.
The trial court held a plea hearing on the second day of
trial upon being informed that Defendant had reached a plea
agreement with the State. At the hearing, Defendant's
trial counsel informed the court that, in exchange for
pleading no contest to two counts of aggravated sexual abuse
of a child, the State had agreed to drop all fourteen
original charges and to recommend that Defendant be sentenced
to two terms of six years to life in prison. As a part of the
agreement, Defendant would be taken into custody immediately
after the plea hearing.
Defendant's counsel then turned her attention to the plea
affidavit, which, she assured the court, she had
"thoroughly" reviewed with Defendant prior to the
plea hearing. The affidavit recited that the "State will
stipulate to two six-to-life sentences and will argue for
consecutive sentences" at the sentencing hearing, with
the caveat that the State's recommendations were
"not binding on the judge." It further recited that
Defendant "will be taken into custody today."
Finally, immediately above the space for Defendant's
signature, the affidavit recited the following, in bold
print: "I will only be allowed to withdraw my plea if I
show that it was not knowingly and voluntarily made."
When prompted by the court, Defendant signed the plea
affidavit, thereby attesting that he had "read this
statement" or "had it read to [him] by [his]
attorney" and that he "underst[ood] its contents
and adopt[ed] each statement in it" as his own. Further,
by signing, he certified that he had "fully
discussed" the contents of the affidavit with his
counsel and that he was "satisfied with [her] advice and
After Defendant had signed the plea affidavit, the court
commenced the plea colloquy. The court began by inquiring
whether Defendant had "consumed any alcohol or drugs
before coming to court" and whether he was
"thinking clearly." Defendant responded that he was
not under the influence of any substance and that he had a
clear mind. The court then asked, "Do you understand
what's taking place?" Defendant responded, "For
the most part, yes."
Following that cryptic comment, the court again asked whether
Defendant had "any questions about what's taking
place." Defendant responded,
The only thing I really have a question on is why they're
going to take me today when . . . I've complied with
everything . . . . I took this after talking with my
attorney, but I don't understand why they're going to
take me today when I've complied with everything [and]
followed through . . . . I'd just ask for a couple days
so I could get some things placed in order financially, so I
can set something up . . . for my two . . . children I've
got. I'm not a threat. I'm not going anywhere.
point, Defendant's counsel turned to him, saying,
"I'm sure the judge will take that into
consideration." When asked by the court whether the
agreement was contingent on Defendant's immediate
incarceration, the State responded in the affirmative,
explaining that it was necessary to prevent Defendant from
"harm[ing] himself" and that he had already
"been out on bail for quite some time." The court
then continued the colloquy and did not broach the
immediate-incarceration issue again.
After confirming that Defendant had been given "enough
time to speak with" his attorney, the court asked
Defendant whether he "underst[ood] the constitutional
rights" that were "set forth in [the] document that
[he] signed." When Defendant hesitated, the court
offered this clarification:
THE COURT: Do you understand you have . . . various
constitutional rights that are addressed in this document
that you have signed? Do you understand that you have those
various constitutional rights?
DEFENDANT: Oh. Yes, sir. I do.
THE COURT: Okay. And you understand that you waive those
constitutional rights by pleading guilty . . . no contest?
DEFENDANT: No contest, yeah . . . .
THE COURT: You understand that a no contest plea, as it
relates to the law, is treated the same legally as far as the
impact . . . and result as a guilty plea?
DEFENDANT: Yes, sir. I do, sir.
THE COURT: You understand the statutory consequences of
entering a guilty plea to two first-degree felony charges of