2011 UT 36
Filed July 12, 2011
In his third direct appeal from his conviction for the aggravated murder of Joyce Yost, the defendant appealed the district court’s denial of his motion to withdraw his guilty plea. The Utah Supreme Court reversed, holding that a trial court’s failure to strictly comply with Utah Rule of Criminal Procedure 11(e) constitutes good cause to withdraw a guilty plea.
Mr. Lovell plead guilty to the murder of Joyce Yost. He then moved to withdraw his plea. The trial court held that his motion was untimely, and Mr. Lovell appealed to the Utah Supreme Court. The Supreme Court reversed and remanded the motion for consideration on the merits. After hearing the motion on the merits, the trail court ruled that Mr. Lovell did not have good cause to withdraw his plea, and Mr. Lovell again appealed to the Utah Supreme Court.
Utah Rule of Criminal Procedure 11(e) requires that a defendant be informed of all the rights he waives by pleading guilty. The Supreme Court held that Mr. Lovell could withdraw his guilty plea because the trial court did not strictly comply with this rule. The Supreme Court disagreed with the trial court’s ruling that although the right to the presumption of innocence and the right to a speedy, public trail were not mentioned anywhere in the plea colloquy or the plea statement, Mr. Lovell was informed of these rights by virtue of his personal experience with the criminal justice system and thus Rule 11(e) had been strictly complied with. Rather, the Supreme Court held that past trial experience cannot be used to support a finding that a defendant was made aware of every waived right. While rule 11(e) does not require that the judge personally address the defendant about each waived right, it does require that the judge assume the responsibility of determining that a defendant has been affirmatively advised about each of the rights. In keeping with this requirement, the Supreme Court held that describing the State’s burden of proof was insufficient to advise the defendant of his right to the presumption of innocence. Further, entering his guilty plea on the day jury selection was to have occurred was insufficient to inform Mr. Lovell of his right to a trial before an impartial jury. Finally, the fact that Mr. Lovell’s other court proceedings had been public was insufficient to assume that Mr. Lovell must have recognized that his trial would be public. Support for a finding that the defendant has been advised of each of his rights must be found in the record. While a variety of documents may be used to support such a finding, these documents must be incorporated into the record. The record must make it clearly evident that the defendant is actually aware of the right, not that there is a reasonable basis to believe that the defendant knows of the right.
The Supreme Court also held that harmless error review does not apply to a trial court’s failure to comply with Rule 11(e). Harm will be presumed and thus there is good cause to withdraw a guilty plea. The defendant is not required to show that “but for” the trial court’s error he would not have plead guilty. This ruling applies to guilty pleas entered following the Supreme Court’s decision in State v. Gibbons, 740 P.2d 1309 (Utah 1987), and before the current version of Utah Rule of Criminal Procedure 11(e) went into effect in 2005. The Supreme Court declined to retroactively apply the current 11(e) to Mr. Lovell because the new version of the rule constitutes a “clear break with the past.”
