District Court, Richfield Department The Honorable Marvin D.
Bagley No. 150600030
Elizabeth Hunt, Attorney for Appellant
D. Reyes and Daniel W. Boyer, Attorneys for Appellee
Michele M. Christiansen Forster authored this Opinion, in
which Judges Gregory K. Orme and Jill M. Pohlman concurred.
CHRISTIANSEN FORSTER, JUDGE
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.
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.
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.
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.
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. The trial court denied all three motions but
did sever two charges to be tried separately-the charges
alleging Hattrich's dealing in material harmful to a
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.
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.
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
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.
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. Hattrich also filed a request for
discovery relating to one of his ineffective assistance
claims, which the district court denied.
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
AND STANDARDS OF REVIEW
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
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.
Hattrich's Knowing and Voluntary Conditional No Contest
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
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.
Hattrich's primary argument 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 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.
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.
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
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.See State v. Norris, 2002 UT App
305, ¶ 12, 57 P.3d 238 (quotation simplified). Likewise,
Hattrich cannot establish that the benefits promised to ...