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Hattrich v. State

Court of Appeals of Utah

August 22, 2019

Paul John Hattrich, Appellant,
State of Utah, Appellee.

          Sixth District Court, Richfield Department The Honorable Marvin D. Bagley No. 150600030

          Elizabeth Hunt, Attorney for Appellant

          Sean D. Reyes and Daniel W. Boyer, Attorneys for Appellee

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.


         ¶1 Paul John Hattrich appeals from the district court's summary judgment in favor of the State and denial of his petition for post-conviction relief. We affirm.


         ¶2 Hattrich occasionally invited a neighbor child (Victim) over to do yard work, play video games, and take care of Hattrich's dogs. At some point, Hattrich began showing Victim print, digital, and video pornography and later performed oral sex on Victim. Eventually, he would perform oral sex on Victim about once a week through the summer but less frequently during the school year. Hattrich told Victim that he had engaged in sex acts with other children, including Victim Two and Victim Three.

         ¶3 Between 1995 and 1999, Hattrich frequently engaged in oral sex with Victim Two and had anal sex with him twice. The abuse usually occurred at Hattrich's home, and Hattrich once videotaped the crime. Hattrich also gave Victim Two free access to pornography.

         ¶4 When Victim Three was about ten or eleven, he and the two other victims went to Hattrich's house approximately two to three times per week. Hattrich took all three boys hunting, let them spend time at his house, and let them look at pornographic movies and magazines in his home. When the boys visited, Hattrich also sexually abused them.

         ¶5 The State charged Hattrich with thirty criminal acts involving the three victims, including rape of a child, sodomy on a child, aggravated sexual abuse of a child, sexual abuse of a child, and dealing in material harmful to a minor. Before the preliminary hearing, Hattrich filed three motions: (1) a motion to change venue, (2) a motion to dismiss nine charges of aggravated sexual abuse of a child, and (3) a motion to sever some of the charged offenses for purposes of trial.[1] The trial court[2] denied all three motions but did sever two charges to be tried separately-the charges alleging Hattrich's dealing in material harmful to a minor.

         ¶6 Following a preliminary hearing, the trial court bound Hattrich over on twenty-seven separate counts. The State subsequently amended the information to reflect these twenty-seven charges-eliminating from the original information one count dismissed at the preliminary hearing and removing the two charges that had been severed.

         ¶7 Hattrich filed three additional motions after the preliminary hearing: (1) a motion to dismiss the amended information on multiplicity grounds or, in the alternative, to reduce the counts; (2) a motion to quash the bindover on eighteen of the charges; and (3) a motion to dismiss the amended information. Hattrich's trial counsel also prepared and filed a witness list and exhibit list in anticipation of trial.

         ¶8 The day before trial was to commence, Hattrich pleaded no contest to three charges of sodomy on a child, each a first-degree felony. In exchange, the State agreed to dismiss the remaining twenty-four charges and to recommend that Hattrich's sentence on each charge run concurrently to the others. Hattrich believed that, by pleading no contest, he could effectively avoid the potential twenty-five-years-to-life sentences that would be imposed if he were convicted of the two child-rape charges. Those charges were to be dismissed as part of the plea agreement. Hattrich conditioned his no contest plea on retaining his "right to appeal any issues which have arisen or been litigated in this case." As part of his plea, Hattrich signed a "Waiver of Rights by Defendant" (the Waiver) in which he acknowledged that he read, understood, and agreed with the provisions of the Waiver, including that he made his plea of no contest of his "own free will and choice." Hattrich also affirmed that he understood that by pleading no contest, he was giving up certain constitutional protections. During the plea hearing, the trial court conducted a plea colloquy during which Hattrich affirmed that he understood the terms of the plea agreement and Waiver.

         ¶9 The trial court accepted Hattrich's no contest pleas and sentenced him to fifteen years to life in prison on each of the three charges. Consistent with the State's recommendation, the court ordered the sentences to run concurrently. Hattrich appealed his convictions, raising several issues, and this court affirmed. See State v. Hattrich, 2013 UT App 177, 317 P.3d 433.

         ¶10 Hattrich subsequently filed a petition for post-conviction relief, asserting three reasons his convictions should be vacated. He first asserted that his no contest pleas were not knowing and voluntary because he did not understand that his reserved right of appeal was limited by the preservation and briefing requirements associated with an appeal. Second, he contended that the prosecution had breached the plea agreement by raising preservation and inadequate-briefing challenges to Hattrich's direct appeal. Third, Hattrich alleged certain instances of ineffective assistance by his trial and appellate counsel.[3] Hattrich also filed a request for discovery relating to one of his ineffective assistance claims, which the district court denied.

         ¶11 The State and Hattrich each filed motions for summary judgment. After briefing and oral argument, the district court granted the State's motion and denied Hattrich's motion.


         ¶12 Hattrich raises a number of issues on appeal. He first argues that the district court erred in granting summary judgment to the State with respect to Hattrich's claims that he should be permitted to withdraw his no contest pleas because they were not knowingly and voluntarily entered and that the State's appellate counsel breached the plea agreement. He also argues that the court erred in granting summary judgment to the State on his various claims that he received ineffective assistance of counsel in both pre-trial matters and on appeal. We review the district court's grant of summary judgment for correctness, affording no deference to the district court. Garcia v. State, 2018 UT App 129, ¶ 8, 427 P.3d 1185. "We will affirm such a decision when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (quotation simplified); see also Utah R. Civ. P. 56(a). "In making this assessment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (quotation simplified).

         ¶13 Hattrich further argues that the district court erred when it denied his request for discovery in pursuing his post-conviction petition. We review the district court's discovery decisions for an abuse of discretion. Menzies v. Galetka, 2006 UT 81, ¶ 59, 150 P.3d 480.


         I. Hattrich's Knowing and Voluntary Conditional No Contest Pleas

         ¶14 Hattrich asserts that he did not knowingly and voluntarily enter his conditional no contest pleas in which he reserved the right to appeal. "A plea is not knowing and voluntary when the record demonstrates that the accused does not understand the nature of the constitutional protections that he is waiving, or when he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." State v. Alexander, 2012 UT 27, ¶ 16, 279 P.3d 371 (quotation simplified). Further, a court must permit a defendant to withdraw a guilty plea when "the State made a promise it did not or could not fulfill." State v. Copeland, 765 P.2d 1266, 1276 (Utah 1988); accord State v. Norris, 2002 UT App 305, ¶ 10, 57 P.3d 238.

         ¶15 Here, after a thorough plea colloquy, the trial court concluded that Hattrich understood the proposed waiver of trial rights listed in the plea agreement and that he "voluntarily and intentionally waived [these] constitutional rights." Indeed, Hattrich informed the trial court that he had read the agreement, understood it, and signed it of his own volition. Moreover, Hattrich acknowledged the factual basis for the plea and stated that he understood the legal elements and potential punishment associated with criminal charges to which he wished to plead no contest. The trial court therefore accepted Hattrich's no contest pleas and proceeded to sentencing.

         ¶16 Hattrich's primary argument[4] in support of his claim that he did not knowingly and voluntarily enter the conditional plea agreement rests on his assertion that the agreement's "plain language purported to allow Hattrich to appeal 'any issues which have arisen or been litigated in this case,' regardless of whether the issue was preserved in the trial court or properly presented on appeal," despite this not being something the State could deliver. See Copeland, 765 P.2d at 1276. Hattrich raised six issues on direct appeal. See generally State v. Hattrich, 2013 UT App 177, 317 P.3d 433. The State contested some of these claims on the grounds that Hattrich failed to preserve them in the trial court and that he did not adequately brief them on appeal. Resolving Hattrich's direct appeal, this court declined to consider one of the claims[5] Hattrich raised both because it was unpreserved and because "[Hattrich's] plea agreement limits the issues he may raise on appeal to those 'which have arisen or been litigated in this case.'" Id. ¶¶ 24, 46.

         ¶17 Hattrich asserts that had he been aware that his appeal would be limited by our preservation and briefing requirements, he would not have entered the plea. He further asserts that the plea agreement was illusory because the State purported to eliminate those procedural requirements as part of the consideration for the agreement, yet had no authority to do so, see Utah R. App. P. 1(a) ("These rules govern the procedure before the Supreme Court and the Court of Appeals of Utah in all cases." (emphasis added)); State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (observing that "parties are required to raise and argue an issue in the trial court in such a way that the court has an opportunity to rule on it" and the failure to do so "generally precludes a party from arguing that issue in an appellate court, absent a valid exception" (quotation simplified)); MacKay v. Hardy, 973 P.2d 941, 947-48 (Utah 1998) (observing that the Utah Rules of Appellate Procedure "set forth the requirements that appellants and appellees must meet when submitting briefs before [Utah's appellate courts]" and that appellate courts have consistently held "that we will not address issues not adequately briefed"). He relatedly contends that the State breached the plea agreement when it argued that he failed to preserve certain issues in the trial court and failed to adequately brief certain issues on appeal.

         ¶18 We apply contract principles when interpreting plea agreements. State v. Davis, 2011 UT App 74, ¶ 3 n.2, 272 P.3d 745. And we generally begin such a review by "looking first to the plain language of a contract." State v. Terrazas, 2014 UT App 229, ¶ 27, 336 P.3d 594 (quotation simplified). Here, the reservation of Hattrich's right to appeal in the plea agreement, in its entirety, reads as follows: "These guilty pleas are conditional on [Hattrich's] right to appeal any issues which have arisen or been litigated in this case."

         ¶19 The language of the plea agreement is straightforward and explicit. It says nothing about removing the otherwise uniform expectations of preservation of issues for appeal or the requirement that issues raised on appeal must be adequately briefed to the appellate court. Hattrich asserts that he believed this agreement afforded him the opportunity to challenge on appeal-and receive a merits review of-any issue he raised, regardless of how well it was briefed and even if it was unpreserved and not argued under an exception to the preservation rule. But any such belief would have been unreasonable in light of the plain language of the agreement, which contains nothing suggesting that Hattrich would not be bound by the court's standard procedural rules in pursuing his appeal. In light of the clear and unambiguous language of the agreement, Hattrich's claim that he was "genuinely and legitimately confused" about the benefit he was to receive under the plea agreement is unpersuasive.[6]See State v. Norris, 2002 UT App 305, ¶ 12, 57 P.3d 238 (quotation simplified). Likewise, Hattrich cannot establish that the benefits promised to ...

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