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State v. Smith

Court of Appeals of Utah

July 27, 2018

State of Utah, Appellee,
v.
Cody C. Smith, Appellant.

          First District Court, Logan Department The Honorable Brian G. Cannell No. 141100216

          David M. Perry, Attorney for Appellant

          Sean D. Reyes and Lindsey Wheeler, Attorneys for Appellee

          Judge 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.

          ORME, JUDGE

         ¶1 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 affirm.

         BACKGROUND

         ¶2 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 Plea Hearing

         ¶3 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.

         ¶4 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."

         ¶5 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 assistance."

         ¶6 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."

         ¶7 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.

         At that 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.

         ¶8 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 ...

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