State v. Harvey , 348 P.3d 1199 ( 2015 )


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    2015 UT App 92
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Plaintiff and Appellee,
    v.
    RICHIE CHARLES HARVEY,
    Defendant and Appellant.
    Memorandum Decision
    No. 20130466-CA
    Filed April 16, 2015
    Fourth District Court, American Fork Department
    The Honorable Christine S. Johnson
    No. 101100836
    Jennifer Gowans Vandenberg, Attorney
    for Appellant
    Sean D. Reyes and Ryan D. Tenney, Attorneys
    for Appellee
    JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
    which JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN
    concurred.
    ROTH, Judge:
    ¶1      Defendant Richie Charles Harvey appeals from the
    district court’s denial of his motion to withdraw his plea of no
    contest to aggravated assault, a third degree felony. Harvey first
    argues that the district court abused its discretion in determining
    that his plea was made knowingly and voluntarily. Second, he
    challenges the court’s denial of his motion on the grounds of
    plain error and ineffective assistance of counsel. We affirm.
    State v. Harvey
    I. Harvey’s Plea Was Knowing and Voluntary.
    ¶2     Harvey contends that his misunderstanding about his
    own criminal history renders his plea unknowing and
    involuntary. This case began when Harvey allegedly sexually
    assaulted a woman in 2010 and was subsequently charged with
    forcible sexual abuse, a second degree felony, and unlawful
    detention, a class B misdemeanor. After negotiations between
    the State and Harvey’s counsel, the State agreed to drop the
    unlawful detention charge and convert the forcible sexual abuse
    charge to third degree aggravated assault if Harvey would plead
    no contest. Prior to the entry of Harvey’s plea, defense counsel
    showed Harvey the matrix that Adult Probation and Parole
    (AP&P) employs as part of its process of developing
    recommendations to assist district courts in determining
    appropriate sentences for offenders. Counsel emphasized to
    Harvey that it was very important for him to tell her about ‚any
    conviction anywhere,‛ including convictions outside of Utah, so
    that she could give him the most accurate estimate possible of
    ‚what was likely to happen at sentencing‛ if he accepted the
    plea offer. Harvey identified a number of prior misdemeanor
    convictions but told counsel he had never been convicted of a
    felony. Based on this information, counsel advised Harvey that it
    was likely he ‚would do some jail time‛ but that a prison
    sentence was unlikely. However, she also told Harvey that there
    was a potential for a maximum sentence of zero to five years in
    prison and that she could make ‚no guarantees‛ about what
    Harvey’s actual sentence would be.
    ¶3     Harvey accepted the State’s offer and entered a no-contest
    plea to the third degree felony. Just before entering his plea, he
    signed a plea affidavit informing him, among other things, of the
    maximum sentence for the charge. The district court also
    conducted a plea colloquy and determined that Harvey had
    entered the plea knowingly and voluntarily. AP&P prepared a
    presentence investigation report (PSI) in anticipation of the
    sentencing hearing. As part of the PSI, AP&P calculated a
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    State v. Harvey
    criminal history assessment score for Harvey, which it then
    incorporated into the Utah Sentencing Commission’s general
    matrix (the Sentencing Matrix). The Sentencing Matrix
    ‚compare*s+ a defendant’s ‘criminal history assessment’ score
    with the degree of the offense of which he ha*s+ been convicted.‛
    State v. Egbert, 
    748 P.2d 558
    , 561–62 (Utah 1987). The Sentencing
    Matrix ‚creates a starting point‛ for sentencing judges by
    ‚reflect*ing+ a recommendation for a typical case,‛ but judges are
    not bound by the recommendations and are to take both
    ‚aggravating and mitigating circumstances‛ into account, along
    with other pertinent considerations, when making sentencing
    decisions. See Utah Sentencing Commission, 2014 Adult
    Sentencing      and    Release    Guidelines   1,    available  at
    http://www.sentencing.utah.gov. The Sentencing Matrix itself
    includes the following statement at the top: ‚These are
    guidelines only. They do not create any right or expectation on
    behalf of the offender.‛ Harvey received a criminal history
    assessment score of nine points in the PSI, which placed him in
    criminal history category III. When viewed in conjunction with
    the third degree felony to which Harvey had pleaded no contest,
    Harvey’s category III score produced a recommendation of
    ‚[i]ntermediate [s]anctions‛ on the Sentencing Matrix—i.e., jail
    time and probation rather than imprisonment. AP&P
    recommended, however, that the district court ‚make an[]
    upward departure from the sentencing guideline and sentence
    *Harvey+ to prison.‛ AP&P based its prison recommendation on
    Harvey’s extensive arrest record and the violent nature of his
    crimes, his continued blaming of the victim in this case, his
    minimization of his prior criminal history, and the agency’s
    concerns for public safety.
    ¶4     At sentencing, Harvey’s counsel requested a continuance
    so AP&P could correct errors counsel identified in the PSI. The
    motion was granted, and AP&P prepared an amended report.
    The corrections to the amended report reduced Harvey’s
    criminal history score from nine points to eight, but the
    reduction did not move him into a different category on the
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    State v. Harvey
    criminal history scale and, accordingly, did not change the
    recommendation indicated by the Sentencing Matrix. And just as
    it had in the first PSI, AP&P recommended that the district court
    ‚make an[] upward departure from the sentencing guideline and
    sentence *Harvey+ to prison‛ because of the various aggravating
    circumstances it had previously articulated.
    ¶5      Harvey obtained new counsel and filed a motion to
    withdraw his plea, contending that his plea was not knowing
    and voluntary because ‚he was under the impression that he
    would receive probation for his sentence‛ and he had been told
    by his prior counsel he would not go to prison. He filed a
    separate motion requesting that AP&P further review his
    criminal history and again amend the PSI. He argued, among
    other things, that one of the points allocated to him on the
    Sentencing Matrix was due to an out-of-state felony conviction
    he was ‚adamant‛ never occurred because he had ‚never spent a
    night in prison in any state, nor has he ever been put on parole.‛
    If the felony were removed, Harvey’s score would be reduced to
    seven points, placing him in category II with a recommendation
    of ‚*r+egular [p]robation‛ on the Sentencing Matrix. The district
    court denied Harvey’s motion to withdraw his plea, stating,
    It is clear from the record that Mr. Harvey was
    advised of the potential plea, the potential sentence.
    I told him myself on the record and he submitted a
    written statement in advance of pleading guilty that
    also indicates that he was advised of the potential
    sentence. So the idea that now he can suggest that if
    he had known there was any possibility of prison,
    he would not have entered his no-contest plea to me
    seems rather disingenuous.
    The district court, however, granted Harvey’s request for further
    clarification of the PSI.
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    State v. Harvey
    ¶6     Over the next year and a half, Harvey failed to appear for
    scheduled hearings, including a subsequent sentencing hearing,
    and warrants were issued for his arrest. In the meantime, AP&P
    produced a second amended PSI confirming, based on
    additional research, that Harvey did indeed have a felony
    conviction in Delaware. Harvey was eventually arrested for
    another assault and brought before the district court for
    sentencing. He continued to assert that the Delaware conviction
    was not a felony and asked the district court to sentence him to
    probation with credit for jail time already served. The district
    court, however, found that Harvey was not a good candidate for
    probation given the ‚horrendous‛ nature of the crime he had
    committed as well as his prolonged failure to appear for
    sentencing and his ongoing history of violent crimes. Instead, the
    court sentenced him to zero to five years in prison as AP&P and
    the State had recommended.1
    ¶7    ‚A plea of guilty or no contest may be withdrawn only
    upon leave of the court and a showing that it was not knowingly
    and voluntarily made.‛ 
    Utah Code Ann. § 77-13-6
    (2)(a)
    (LexisNexis 2012) (the Plea Withdrawal Statute). A plea is
    1. The court stated,
    This was . . . reduced to a third-degree
    felony to a level of offense where I might have been
    willing to consider probation, but based upon
    [your] conduct thereafter, I just don’t believe that
    you’re a candidate for probation, Mr. Harvey.
    You’ve been a fugitive for a year and a half which
    tells me you are not supervise-able. I can’t trust
    you on probation if I can’t trust you to even show
    up to court when you’re supposed to be here.
    Therefore, I will adopt the recommendation
    of AP&P and impose zero to five in the State prison
    to commence forthwith.
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    State v. Harvey
    knowing and voluntary ‚only if the defendant is ‘fully aware of
    the direct consequences’ of his plea.‛ State v. Trotter, 
    2014 UT 17
    ,
    ¶ 9, 
    330 P.3d 1267
     (quoting Brady v. United States, 
    397 U.S. 742
    ,
    755 (1970)). ‚A direct consequence is one that will have a
    definite, immediate and largely automatic effect on the range of
    the defendant’s punishment such as lack of eligibility for
    parole.‛ 
    Id.
     (citation and internal quotation marks omitted). Both
    defense counsel and the district court have a responsibility to
    ‚ensure a defendant is aware of the direct consequences of his or
    her plea.‛ 
    Id.
     Harvey argues that ‚he did not understand his
    criminal history and thus how it would impact the [Sentencing]
    [M]atrix.‛ He contends that, as a result, his plea was not
    knowing and voluntary because he was not fully aware of its
    consequences. We conclude, however, that Harvey was
    appropriately made aware of the direct consequences of his plea.
    ¶8      ‚We review a trial court’s denial of a motion to withdraw
    a guilty plea under an abuse of discretion standard,
    incorporating the clearly erroneous standard for the trial court’s
    findings of fact made in conjunction with that decision.‛ State v.
    Lehi, 
    2003 UT App 212
    , ¶ 7, 
    73 P.3d 985
     (citation and internal
    quotation marks omitted); see also State v. Knowlden, 
    2013 UT App 63
    , ¶¶ 1–2, 
    298 P.3d 691
     (per curiam) (applying the same
    standard to a motion to withdraw a no-contest plea). We
    conclude that the district court did not abuse its discretion in
    refusing Harvey’s request to withdraw his plea. There is ample
    record support for the district court’s findings that both counsel
    and the district court made efforts to ensure that Harvey was
    ‚fully aware of the direct consequences of his plea.‛ See Trotter,
    
    2014 UT 17
    , ¶ 9 (citation and internal quotation marks omitted).
    While counsel predicted that Harvey’s plea would likely result
    in a jail sentence, she explained to Harvey that a prison sentence
    was a possible consequence and that there were ‚no guarantees‛
    when it came to sentencing. The district court also conducted a
    plea colloquy before accepting Harvey’s plea in which it
    specifically asked Harvey whether he was aware that prison was
    a possibility, to which he answered, ‚Yes, your Honor.‛
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    State v. Harvey
    Additionally, Harvey signed a plea affidavit that clearly
    identified the maximum sentence for the crime to which he was
    pleading as zero-to-five years in prison. Given the record before
    us, we determine that the district court did not err in
    determining that Harvey’s plea was entered knowingly and
    voluntarily because he was aware of the potential consequences
    of his plea.
    ¶9     Harvey argues, however, that accurate advice about a
    crime’s potential maximum sentence is not sufficient to render a
    plea knowing and voluntary. He contends that his genuine belief
    he had never committed a felony is sufficient to show he ‚lacked
    a full understanding of the direct consequences of his plea‛ at
    the time it was entered and asserts that ‚had he understood his
    offender score would include a prior felony conviction, it is
    likely that he would not have pled [no contest].‛ We note first
    that AP&P’s recommendation of prison was not a result of
    Harvey’s offender score on the Sentencing Matrix, as his score,
    with or without the felony, would not have produced a
    recommendation on the matrix for prison. Rather, it was AP&P’s
    concern over Harvey’s continued blaming of the victim, his
    violent history, and his prolific arrest record that motivated its
    recommendation of a prison sentence. And the judge based her
    sentencing decision on similar factors as well as Harvey’s
    conduct during the course of the proceedings. Thus, the
    Delaware felony conviction appears to have had relatively little
    impact on Harvey’s sentence and therefore was not the kind of
    information that falls within the scope of a ‚direct consequence‛
    of his plea, i.e., something that would have ‚a definite,
    immediate and largely automatic effect on the range of the
    defendant’s punishment.‛ See 
    id.
     (citation and internal quotation
    marks omitted).
    ¶10 More importantly, however, Harvey has failed to
    convince us that a defendant’s misunderstanding of or
    disagreement as to his own criminal history is sufficient to
    render his plea involuntary when he has been correctly informed
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    State v. Harvey
    of its potential consequences. Harvey cites State v. Robinson, 
    263 P.3d 1233
     (Wash. 2011) (en banc), and People v. Chippewa, 
    751 P.2d 607
     (Colo. 1988) (en banc), as support for his contention that
    a defendant’s plea is not knowing and voluntary, even when the
    defendant is aware of the potential maximum sentence, if it is
    based on a mistaken belief held by defendant about the potential
    for a sentence less than the maximum. We conclude that these
    cases are distinguishable from the circumstances here.
    ¶11     In Robinson, when the defendant pleaded guilty, he was
    not made aware of changes to Washington law that allowed a
    defendant’s juvenile criminal record to be included in the
    calculation of his criminal history score when sentenced for a
    crime he committed as an adult. 263 P.3d at 1234. The Robinson
    court determined the defendant’s mistaken belief that his
    juvenile record would not be considered was a ‚legal mistake,‛
    not a factual one, because his misunderstanding turned on his
    mistaken views of the applicable law and not on any
    misunderstanding of the facts of his criminal history. Id. at 1236–
    38 (citation and internal quotation marks omitted). However, the
    court reiterated that defendants ‚contractually assume*+ the risk
    that additional criminal history *will+ be found.‛ Id. at 1237.
    Here, Harvey’s misunderstanding was a factual rather than a
    legal one, as he had been correctly advised of the potential legal
    consequences of his plea and it was his own misunderstanding
    of his criminal history that led to his belief about how he would
    be sentenced. Neither does Chippewa support Harvey’s position,
    as the court there did not reach the question of whether the
    defendant’s plea was entered knowingly and voluntarily, but
    instead considered only whether the defendant had provided a
    ‚fair and just reason‛ for withdrawing his plea—a standard that
    no longer applies in Utah. 751 P.2d at 607, 610–11; see also State v.
    Ruiz, 
    2012 UT 29
    , ¶¶ 29–30, 
    282 P.3d 998
     (explaining that under a
    former version of Utah’s Plea Withdrawal Statute, a defendant
    had to show ‚good cause‛ by demonstrating a ‚fair and just
    reason‛ for granting a withdrawal, but that under the amended
    version, a defendant must show ‚the plea was not knowingly
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    State v. Harvey
    and voluntarily entered‛ (citation and internal quotation marks
    omitted)).
    ¶12 We         therefore    conclude     that    Harvey’s    own
    misunderstanding of his criminal history did not render his plea
    involuntary and unknowing because he was informed of the
    potential sentencing consequences of his plea—whatever his
    criminal history might reveal. In other words, Harvey was
    advised by his counsel, his plea affidavit, and the judge that the
    maximum punishment he could receive (other than a fine) was a
    sentence of zero-to-five years in prison. Harvey has not
    persuaded us that Utah law requires more. See, e.g., State v.
    Candland, 
    2013 UT 55
    , ¶ 13, 
    309 P.3d 230
     (holding that a
    defendant must have knowledge ‚of the likely consequences of
    entering the guilty plea‛ in order for a plea to be voluntary and
    knowing); State v. Alexander, 
    2012 UT 27
    , ¶ 23, 
    279 P.3d 371
     (‚To
    show that a plea was not knowing and voluntary, a defendant
    must show either that he did not in fact understand the nature of
    the constitutional protections that he was waiving by pleading
    guilty, or that he had such an incomplete understanding of the
    charge that his plea cannot stand as an intelligent admission of
    guilt.‛ (citation and internal quotation marks omitted)).2
    2. It is worth noting that many federal courts have also
    concluded that a defendant’s inaccurate sentencing expectations
    do not render a plea constitutionally defective. See, e.g., United
    States v. Gunter, 
    620 F.3d 642
    , 647 (6th Cir. 2010) (holding that an
    inaccurate sentencing estimate did not render a plea unknowing,
    unintelligent, or involuntary because the defendant was
    informed of the statutory maximum); United States v. Bowlin, 
    534 F.3d 654
    , 660 (7th Cir. 2008) (holding an attorney’s mistaken
    prediction about a possible sentence does not render a
    defendant’s plea unknowing and involuntary); United States v.
    Pease, 
    240 F.3d 938
    , 940–42 (11th Cir. 2001) (per curiam) (holding
    that a defense attorney’s failure to uncover a defendant’s prior
    (continued...)
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    State v. Harvey
    Accordingly, we conclude the district court did not abuse its
    discretion in denying Harvey’s motion to withdraw his plea.
    II. Harvey’s Claims of Plain Error and Ineffective Assistance of
    Counsel Also Fail.
    ¶13 Harvey next contends that the district court erred when it
    failed to allow him to withdraw his plea on the basis of his
    ‚ongoing hostile relationship with his attorney‛ and his own
    ‚marginal competency.‛ Harvey did not raise these claims in the
    district court, and therefore they are not preserved. Accordingly,
    he raises them on appeal claiming plain error and ineffective
    assistance of counsel. See State v. Williams, 
    2013 UT App 101
    , ¶ 2,
    
    300 P.3d 788
     (observing that claims of plain error and ineffective
    assistance of counsel are exceptions to the preservation rule).
    Plain error requires a defendant to show that ‚(i) an error exists;
    (ii) the error should have been obvious to the trial court; and (iii)
    the error is harmful.‛ State v. Lee, 
    2006 UT 5
    , ¶ 26, 
    128 P.3d 1179
    (citation and internal quotation marks omitted). To show that
    counsel was constitutionally ineffective, a defendant must show
    ‚(1) that counsel’s performance was objectively deficient, and (2)
    (34
    F.3d 896
    , 899 (9th Cir. 1994) (‚*A+n erroneous prediction by a
    defense attorney concerning sentencing does not entitle a
    defendant to challenge his guilty plea.‛ (citation and internal
    quotation marks omitted)); United States v. Jones, 
    905 F.2d 867
    ,
    868 (5th Cir. 1990) (‚As long as the [defendant] understood the
    length of time he might possibly receive, he was fully aware of
    his plea’s consequences.‛ (alteration in original) (citation and
    internal quotation marks omitted)).
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    State v. Harvey
    a reasonable probability exists that but for the deficient conduct
    defendant would have obtained a more favorable outcome at
    trial.‛ State v. Clark, 
    2004 UT 25
    , ¶ 6, 
    89 P.3d 162
    . We conclude
    that Harvey has failed to meet his burden under either standard.
    ¶14 During the course of proceedings in the district court,
    Harvey sent several letters to the judge complaining about his
    counsel’s performance and requesting that new counsel be
    appointed. He alleged that counsel ‚would not investigate
    exculpatory evidence‛; ‚refused to communicate with him‛;
    ‚was hostile‛; ‚refused to provide him with discovery and other
    materials‛; and ‚refused to investigate a defense of voluntary
    intoxication.‛ The court addressed Harvey’s concerns at the
    preliminary hearing and determined that trial counsel was
    competent and that Harvey was adequately represented.
    ¶15 Harvey claims that the district court should have granted
    his motion to withdraw his plea on the basis of his hostile
    relationship with his defense counsel. He also argues that the
    attorney who replaced his original counsel was ineffective for
    failing to raise his hostile relationship with his original counsel
    as a basis for withdrawing his plea. But a hostile relationship
    with one’s attorney is not necessarily a proper basis on which a
    district court can grant a motion to withdraw a plea. The Plea
    Withdrawal Statute clearly states, ‚A plea of guilty or no contest
    may be withdrawn only upon . . . a showing that it was not
    knowingly and voluntarily made.‛ 
    Utah Code Ann. § 77-13
    -
    6(2)(a) (LexisNexis 2012) (emphasis added). Thus, the hostile
    relationship between Harvey and his counsel would be a
    sufficient basis for withdrawal of his plea only if that
    relationship rendered his plea unknowing and involuntary.
    Here, the district court determined at the preliminary hearing
    that Harvey was adequately represented by competent counsel,
    a finding that Harvey has not challenged on appeal. And while
    the record demonstrates Harvey’s frustration with his counsel
    throughout the proceedings, nothing suggests to us that the
    relationship interfered with counsel’s fulfillment of her
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    obligation to inform Harvey of the consequences of his plea or
    with Harvey’s understanding of those consequences. As a result,
    we are not persuaded that it should have been obvious to the
    district court at any point in the proceedings that Harvey’s
    relationship with his counsel required that he be allowed to
    withdraw his plea. For the same reason, Harvey cannot show
    that replacement counsel was ineffective for failing to make such
    a motion. Accordingly, Harvey’s claims of plain error and
    ineffective assistance of counsel related to his relationship with
    counsel fail.
    ¶16 Harvey’s competency was also addressed in the district
    court. The State requested a competency evaluation based on
    Harvey’s ‚erratic and inappropriate behavior in the courtroom.‛
    The district court granted the motion. A psychiatrist concluded
    that Harvey suffered from a ‚delusional disorder of the
    persecutory type,‛ as evidenced by Harvey’s belief that he was
    being pursued by FBI agents and police officers after
    purportedly filing a lawsuit against law enforcement many years
    prior. Harvey also claimed that the woman he had assaulted in
    this case was an FBI informant hired to fabricate allegations
    against him. The psychiatrist determined that Harvey’s
    delusions ‚severely limited‛ his ability to participate in his own
    defense. A second psychiatrist, however, determined that while
    Harvey ‚shows character traits suggestive of a personality
    disorder,‛ Harvey did not suffer from a mental illness and was
    competent to assist counsel in his defense. Harvey was then
    examined by a third psychiatrist who also concluded that
    Harvey ‚does not meet the diagnostic criteria for a mental
    disorder‛ and was competent to stand trial. The district court
    determined that Harvey was legally competent, and the
    proceedings moved forward. Harvey argues that the district
    court committed plain error in failing to grant his motion to
    withdraw his plea because of Harvey’s ‚marginal competency‛
    and that his counsel provided ineffective assistance in failing to
    move to withdraw his plea on the same ground.
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    ¶17 ‚The same standard applies to both a determination of
    competency to plead guilty and a determination of competency
    to stand trial.‛ State v. Arguelles, 
    2003 UT 1
    , ¶ 50 n.11, 
    63 P.3d 731
    . The district court’s determination that Harvey was
    competent to stand trial was therefore also a determination that
    Harvey was competent to plead no contest. See 
    id.
     Harvey argues
    that a finding of incompetency by one of the psychiatrists was
    sufficient reason for the district court to grant his motion to
    withdraw his plea. But Harvey has not challenged the district
    court’s ultimate finding that he was competent to stand trial
    based on the court’s consideration of the opinions of all three
    psychiatrists. In light of the district court’s unchallenged and
    supported determination that Harvey was competent to stand
    trial (and therefore competent to plead), Harvey cannot argue
    that the court committed obvious error in failing to sua sponte
    permit him to withdraw his plea on the basis of his ‚marginal
    competence.‛ Nor can he claim that counsel was ineffective for
    failing to argue Harvey’s marginal competency as a reason for
    withdrawing the plea. Harvey’s claims related to his competency
    therefore fail.
    ¶18   We affirm.
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