APPEAL FROM A DENIAL OF DEFENDANT\u27S MOTION TO WITHDRAW HIS GUILTY PLEA WHICH RESULTED IN A CONVICTION OF AGGRAVATED ASSAULT, A THIRD DEGREE FELONY, IN THE SECOND JUDICIAL DISTRICT COURT, IN AND FOR DAVIS COUNTY, STATE OF UTAH, THE HONORABLE DOUGLAS L. CORNABY, JUDGE, PRESIDING

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State of Utah vs. Henry A. Martinez : Brief of Appellee

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Brigham Young University Law SchoolBYU Law Digital CommonsUtah Court of Appeals Briefs1990State of Utah vs. Henry A. Martinez : Brief ofAppelleeUtah Court of AppealsFollow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca1Part of the Law CommonsOriginal Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.R. Paul Van Dam; Utah Attorney General; David B. Thompson; Assistant Attorney General;Attorneys for Appellee.Randall Gaither; Attorney for Appellant.This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court ofAppeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available athttp://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at hunterlawlibrary@byu.edu withquestions or feedback.Recommended CitationBrief of Appellee, State of Utah v. Henry A. Martinez, No. 900311 (Utah Court of Appeals, 1990).https://digitalcommons.law.byu.edu/byu_ca1/2710UTAH DOCUMENT K F U 50 •A10 QCA DOCKET NO. [Ky IN THE UTAH COURT OF APPEALS STATE OF UTAH, Plaintiff-Appellee, v. HENRY A. MARTINEZ, Defendant-Appellant, Case No. 900311-CA Category No. 2 BRIEF OF APPELLEE APPEAL FROM A DENIAL OF DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WHICH RESULTED IN A CONVICTION OF AGGRAVATED ASSAULT, A THIRD DEGREE FELONY, IN THE SECOND JUDICIAL DISTRICT COURT, IN AND FOR DAVIS COUNTY, STATE OF UTAH, THE HONORABLE DOUGLAS L. CORNABY, JUDGE, PRESIDING. R. PAUL VAN DAM (3312) Attorney General DAVID B. THOMPSON (4159) Assistant Attorney General 236 State Capitol Salt Lake City, Utah 84114 Telephone: (801) 538-1021 Attorneys for Appellee RANDALL GAITHER 321 South 600 East Salt Lake City, Utah 84102 Attorney for Appellant tvUV -it I IN THE UTAH COURT OF APPEALS STATE OF UTAH, Plaintiff-Appellee, v. HENRY A. MARTINEZ, Defendant-Appellant, Case No. 900311-CA Category No. 2 BRIEF OF APPELLEE APPEAL FROM A DENIAL OF DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WHICH RESULTED IN A CONVICTION OF AGGRAVATED ASSAULT, A THIRD DEGREE FELONY, IN THE SECOND JUDICIAL DISTRICT COURT, IN AND FOR DAVIS COUNTY, STATE OF UTAH, THE HONORABLE DOUGLAS L. CORNABY, JUDGE, PRESIDING. R. PAUL VAN DAM (3312) Attorney General DAVID B. THOMPSON (4159) Assistant Attorney General 236 State Capitol Salt Lake City, Utah 84114 Telephone: (801) 538-1021 Attorneys for Appellee RANDALL GAITHER 321 South 600 East Salt Lake City, Utah 84102 Attorney for Appellant TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii JURISDICTION AND NATURE OF PROCEEDINGS 1 STATEMENT OF ISSUES PRESENTED ON APPEAL AND STANDARDS OF APPELLATE REVIEW 1 CONSTITUTIONAL PROVISIONS, STATUTES AND RULES 2 STATEMENT OF THE CASE 2 STATEMENT OF FACTS 3 SUMMARY OF ARGUMENT 4 ARGUMENT POINT I THIS COURT SHOULD NOT CONSIDER DEFENDANT'S ARGUMENT THAT THE TRIAL COURT SHOULD HAVE GRANTED HIS MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE, AT THE TIME OF THE TAKING OF THE PLEA, IT FAILED TO ADEQUATELY INFORM HIM OF THE ELEMENTS OF THE CHARGED OFFENSE AND THE RELATIONSHIP OF THOSE ELEMENTS TO THE FACTS OF HIS CASE , POINT II DEFENDANT'S BARE ALLEGATION THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IS AN INSUFFICIENT BASIS UPON WHICH TO GRANT HIM ANY RELIEF CONCLUSION. 5 6 -i-TABLE OF AUTHORITIES CASES CITED Page State v. Amicone, 689 P.2d 1341 (Utah 1984) 6 State v. Geary, 707 P.2d 645 (Utah 1985) 6 State v. Knight, 734 P.2d 913 (Utah 1987) 6 State v. Lairby, 699 P.2d 1187 (Utah 1984) 6 State v. Lovell, 758 P.2d 909 (Utah 1988) 2, 5 State v. Mildenhall, 747 P.2d 422 (Utah 1987) 1, 6 State v. Pascoe, 774 P.2d 512 (Utah Ct. App. 1989) 6 State v. Steggell, 660 P.2d 252 (Utah 1983) 5 State v. Verde, 770 P.2d 116 (Utah 1989) 2, 5-6 Strickland v. Washington, 466 U.S. 668 (1984) overruled on other grounds, 739 P.2d 628 (Utah 1987) 6 CONSTITUTIONS, STATUTES AND RULES Utah Code Ann. § 76-5-103 (1990) 1-2 Utah Code Ann. § 76-10-506 (1990) 3 Utah Code Ann. §78-2a-3 (Supp. 1990) 1 IN THE UTAH COURT OF APPEALS STATE OF UTAH, : Plaintiff-Appellee, : Case No. 900311-CA v. : HENRY A. MARTINEZ, : Category No. 2 Defendant-Appellant. : BRIEF OF APPELLEE JURISDICTION AND NATURE OF PROCEEDINGS This appeal is from a denial of defendant's motion to withdraw his guilty plea which resulted in a conviction of aggravated assault, a third degree felony, under Utah Code Ann. § 76-5-103(l)(b) (1990). This Court has jurisdiction to hear the appeal under Utah Code Ann. § 78-2a-3(2)(f) (Supp. 1990). STATEMENT OF ISSUES PRESENTED ON APPEAL AND STANDARDS OF APPELLATE REVIEW The following issues are presented on appeal: 1. Did the trial court properly deny defendant's motion to withdraw his guilty plea? An appellate court will not interfere with a trial court's determination that a defendant has failed to show good cause for withdrawal of a guilty plea unless it clearly appears that the court has abused its discretion. State v. Mildenhall, 747 P.2d 422, 424 (Utah 1987). 2. Was defendant denied effective assistance of counsel at the time he entered his guilty plea? "[A] defendant who raises a claim of ineffective assistance of counsel must show both that his or her counsel rendered a deficient performance in some demonstrable manner and 'that a reasonable probability exists that except for ineffective counsel, the result would have been different.'" State v. Verde, 770 P.2d 116, 118 (Utah 1989) (quoting State v. Lovell, 758 P.2d 909, 913 (Utah 1988)) (footnote omitted). CONSTITUTIONAL PROVISIONS, STATUTES AND RULES Any relevant text of constitutional, statutory, or rule provisions pertinent to the resolution of the issues presented on appeal is contained in the body of this brief. STATEMENT OF THE CASE Defendant, Henry A. Martinez, was charged with aggravated assault, a third degree felony, under Utah Code Ann. § 76-5-103 (1990) (R. 13). Based on a plea bargain, defendant entered and the court accepted a guilty plea to the charge (Pre-Trial Transcript 8/30/88). The court sentenced defendant to a term of zero to five years at the Utah State Prison and ordered him to pay a fine, a surcharge, and restitution (R. 29-31). Approximately seven months after the imposition of sentence, defendant moved to withdraw his guilty plea (R. 39-41). After a hearing, the trial court denied defendant's motion (R. 60-62). -2-STATEMENT OF FACTS In his motion to withdraw his guilty plea, defendant claimed that he should have been charged and convicted under Utah Code Ann. § 76-10-506 (1990) (threatening with or using a dangerous weapon in a fight or quarrel), that he had not received the reduced charge and sentence promised to him, and that he did not enter his guilty plea "with full and perfect knowledge of the consequences of the confession after being advised that the Court no longer concurred and the Defense Attorney failing to advise Defendant to withdraw guilty plea [sic] and request a trial in order to afford defendant an opportunity to plead his case" (R. 40-41). At the hearing on defendant's motion, defendant's counsel's argument and defendant's testimony focused exclusively on possible coercion in the entry of defendant's plea (Transcript of Hearing on Motion 9/12/89 at 3-10, 28). Specifically, defendant's counsel argued: Mr. Martinez'[s] testimony clearly indicates, your Honor, that he didn't know what he was doing. He was suffering from undue stress relying substantially on his attorney to make decisions for him. He didn't have the opportunity to discuss it with him. He didn't have the opportunity to read the memorandum of agreement. And based on that, your Honor, I think the guilty plea should be set aside. (Id. at 28). The court denied defendant's motion to withdraw (R. 60-62). SUMMARY OF ARGUMENT On appeal, defendant argues that the trial court should have allowed him to withdraw his guilty plea because the court failed to adequately inform him of the elements of aggravated assault and to enter findings that defendant understood the elements of that offense and the relationship between the facts of his case and those elements. Because this argument was not made to the trial court, this Court should not address it for the first time on appeal. Defendant's cursory argument regarding ineffective assistance of counsel neither acknowledges nor applies the two-pronged test for ineffective assistance of counsel set forth in numerous decisions of this Court and the Utah Supreme Court. Without any analysis of the question under the proper legal standard, defendant's bare allegation that he was denied effective assistance of counsel is an insufficient basis for overturning the trial court's denial of defendant's motion to withdraw his guilty plea. ARGUMENT POINT I THIS COURT SHOULD NOT CONSIDER DEFENDANT'S ARGUMENT THAT THE TRIAL COURT SHOULD HAVE GRANTED HIS MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE, AT THE TIME OF THE TAKING OF THE PLEA, IT FAILED TO ADEQUATELY INFORM HIM OF THE ELEMENTS OF THE CHARGED OFFENSE AND THE RELATIONSHIP OF THOSE ELEMENTS TO THE FACTS OF HIS CASE. On appeal, defendant argues that the trial court should have allowed him to withdraw his guilty plea because the court failed to adequately inform him of the elements of aggravated assault and to enter findings that defendant understood the elements of that offense and the relationship between the facts of his case and those elements. Because this argument, and the related argument defendant makes with respect to rule 11, Utah Rules of Criminal Procedure (see Point II of defendant's brief, Br, of Appellant at 16-17), were not made to the trial court in defendant's motion to withdraw his guilty plea, this Court should not address them for the first time on appeal. State v. Steggell, 660 P.2d 252, 254 (Utah 1983) (Court generally will not consider issues raised for the first time on appeal). POINT II DEFENDANT'S BARE ALLEGATION THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IS AN INSUFFICIENT BASIS UPON WHICH TO GRANT HIM ANY RELIEF. Defendant argues that he was denied effective assistance of counsel at the time he entered his guilty plea. However, defendant makes this argument without acknowledging or applying the two-pronged test for ineffective assistance of counsel clearly set forth in numerous decisions of this Court and the Utah Supreme Court. As the supreme court recently noted, "a defendant who raises a claim of ineffective assistance of counsel must show both that his or her counsel rendered a deficient performance in some demonstrable manner and 'that a reasonable probability exists that except for ineffective counsel, the result would have been different.'" State v. Verde, 770 P.2d 116, 118 (Utah 1989) (quoting State v. Lovell, 758 P.2d 909, 913 (Utah 1988)) (footnote omitted). This standard is the same as that adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See State v. Lairby, 699 P.2d 1187, 1204 (Utah 1984) (adopting Strickland standard), overruled on other grounds, 739 P.2d 628, 631 n.8 (Utah 1987); Verde, 770 P.2d at 118-19 n.2. In the absence of any discussion or analysis by defendant of this critical standard or of its applicability to plea bargain situations, see State v. Geary, 707 P.2d 645, 646-47 (Utah 1985) (per curiam) (suggesting that Strickland standard does not apply to effectiveness of counsel in plea bargaining); State v. Knight, 734 P.2d 913, 919 n.7 (Utah 1987) (suggesting that Strickland standard may have more limited application in plea bargain situations), the Court should not consider his ineffectiveness claim. See State v. Amicone, 689 P.2d 1341, 1344 (Utah 1984) ("Since the defendant fails to support [her] argument by any legal analysis or authority, we decline to rule on it."); State v. Pascoe, 774 P.2d 512, 514 (Utah Ct. App. 1989) (applying Amicone in declining to address the defendant's argument). Furthermore, it does not appear that defendant's allegations of ineffectiveness would meet either the deficient performance prong or the prejudice prong of the ineffectiveness test. CONCLUSION In sum, defendant fails to demonstrate that the trial court's denial of his motion to withdraw was a clear abuse of discretion. State v. Mildenhall, 747 P.2d 422, 424 (Utah 1987) (an appellate court will not interfere with a trial court's determination that a defendant has failed to show good cause for withdrawal of a guilty plea unless it clearly appears that the court abused its discretion). -6-Based on the foregoing arguments, this Court should affirm the denial of defendant's motion to withdraw his guilty Plea- jf_ i&far oJ RESPECTFULLY submitted t h i s <2?^<l y of November, 1990. R. PAUL VAN DAM Attorney General DAVID B. THOMPSON (/ Assistant Attorney General CERTIFICATE OF MAILING I hereby certify that four true and accurate copies of the foregoing Brief of Appellee were mailed, postage prepaid, to Randall Gaither, Attorney for Appellant, 321 South 600 East, Salt Lake City, Utah 84102, this s2Z%&Y of November, 1990. Jfcu^jC 3.^3^. 

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State of Utah vs. Henry A. Martinez : Brief of Appellee

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