Bryant v. State

2021 UT App 30

THE UTAH COURT OF APPEALS

PAUL BRYANT,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20190556-CA
Filed March 18, 2021

Fourth District Court, Provo Department
The Honorable Kraig Powell
No. 170401608

Freyja Johnson and Emily Adams,
Attorneys for Appellant
Sean D. Reyes and Erin Riley,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE DIANA HAGEN and SENIOR JUDGE KATE APPLEBY
concurred. 1

ORME, Judge:

¶1 Paul Bryant appeals the district court’s summary
judgment ruling in favor of the State on his petition for relief
under the Post-Conviction Remedies Act (the PCRA). Given
Bryant’s admissions and acknowledgments in his plea
agreement and at a plea colloquy in the underlying criminal
case, the court determined there was no genuine dispute of
material fact. Bryant primarily challenges this determination,

1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
 Bryant v. State

insisting that his later affidavit detailing his attorneys’ alleged
ineffective assistance created a dispute of material fact. We reject
his argument and affirm.

BACKGROUND 2

¶2 In 2015, the State charged Bryant with fifteen counts of
aggravated sexual abuse of a child and five counts of tampering
with a witness, all third-degree felonies. Bryant subsequently
entered into a plea agreement with the State. He agreed to plead
guilty to three counts of attempted aggravated sexual abuse of a
child. In exchange, the State agreed to drop the remaining
charges and to recommend to the court that it stay the expected
prison sentences and place him on probation for five years after
he served two consecutive one-year jail terms.

¶3 In the plea agreement, Bryant acknowledged that he was
acting “voluntarily” and that he had “fully discussed this plea
agreement, [his] rights, and the consequences of [his] guilty
pleas” with his attorneys and was “satisfied with the[ir] advice
and assistance.” Bryant also averred that he was “entering this
plea of [his] own free will and choice”; that “[n]o force, threats,
o[r] unlawful influence of any kind ha[d] been made to get [him]
to plead guilty”; and that he was “of sound and discerning
mind and . . . mentally capable of understanding these
proceedings and the consequences of [his] plea.” He likewise
acknowledged that if he instead desired to plead not guilty, his
case would be set for trial and that if he could not afford counsel,
“an attorney [would] be appointed by the court at no cost to
[him].”

2. “[W]hen reviewing a grant of summary judgment, we recite
the disputed facts in a light most favorable to the nonmoving
party.” Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343.

20190556-CA 2 2021 UT App 30
 Bryant v. State

¶4 During the plea colloquy, Bryant confirmed that he did
not “need more time to talk to [his] attorneys” and that he was
“satisfied with their representation.” The factual basis for the
plea was then read in open court, and Bryant acknowledged that
“by pleading guilty [he was] admitting that is what happened.”
The court then accepted the plea agreement and followed the
State’s sentencing recommendation.

¶5 The next day, however, Bryant left a phone message for
his attorneys, stating,

I’m really struggling with this decision. Is there
any way we can change it or do something? I’m
just really having a tough time. Especially after
being in court yesterday, it just doesn’t feel right. It
doesn’t feel like we did the right thing. . . . I
wanted my day in court. I don’t know how to
contact you. . . . Do I need to write you a letter? Do
I write a letter to the judge? What do I do to fix
this? It’s just not right.

A few days later, Bryant spoke with his attorneys and asked
whether there was a “way to change it or go fight it or
something?” One of his attorneys told him, “No, there’s not. . . .
There’s no way to withdraw your plea. You’ve already been
sentenced.” 3

3. This advice was consistent with Utah Code section 77-13-6,
which states, “A request to withdraw a plea of guilty or no
contest, except for a plea held in abeyance, shall be made by
motion before sentence is announced.” Utah Code Ann.
§ 77-13-6(2)(b) (LexisNexis 2017). This important point was also
covered in the written plea agreement and by the court during
the plea colloquy.

20190556-CA 3 2021 UT App 30
 Bryant v. State

¶6 Upon his release from jail, Bryant petitioned for
post-conviction relief, arguing that his attorneys provided
ineffective assistance and, as a result, his plea was not knowing
and voluntary. Bryant alleged that his attorneys failed to
investigate his case and prepare for trial, which led to his guilty
plea because he “knew that if [he] did not accept this plea
bargain that [he] was facing [multiple] counts of very serious
criminal charges.” Specifically, he alleged that his “[a]ttorneys
did not respond to letters and answered no questions in writing
that were put to them” and that they “interviewed only a few of
the suggested witnesses,” leaving “[m]any of the important
witnesses” un-interviewed.

¶7 The State moved for summary judgment. It asserted that
“Bryant’s pleaded facts and proffered evidence . . . are
insufficient as a matter of law to demonstrate that he is entitled
to post-conviction relief” because they were “[m]ere self-serving
statements contradicting [his] representations to the court during
his plea hearing” that he was satisfied with the advice and
assistance of his attorneys. In response, Bryant submitted a
lengthy affidavit in which he claimed that his attorneys did not
interview everyone he asked them to, were generally
unprepared for trial, and pressured him to take the plea deal
even though he “made it clear several times” that “[i]t was never
an option.” By the time he was offered the plea deal, he averred,

I had spent all my money . . . to pay my
attorneys—approximately $91,000.00. . . . I felt an
incredible amount of frustration, pressure,
confusion, despair, on top of which I felt that I had
no choice but to comply with my attorneys. . . . I
felt that my attorneys had failed me but, at that low
point, I could not pay for new counsel to take on
my case and my will was effectively overborne. I
genuinely felt that I had no choice at that time but
to take the deal.

20190556-CA 4 2021 UT App 30
 Bryant v. State

¶8 The district court granted the State’s summary judgment
motion. It determined that “[e]ven assuming . . . that all of
Bryant’s allegations about his attorneys’ actions are true, those
facts cannot overcome the agreement that Bryant ratified to
voluntarily waive his rights to trial.” The court further noted that
it “explicitly gave Bryant, prior to accepting his pleas, the
opportunity to indicate whether or not he was satisfied with the
performance of his attorneys [and he] answered that he was
satisfied.” The court noted that Bryant’s plea agreement and his
statements during the plea colloquy included acknowledgement
that he was satisfied with his attorneys’ assistance, that he
understood what he was doing, and that he was pleading guilty
because he was in fact guilty. Accordingly, the court concluded
that “Bryant cannot establish that the performance of his
attorneys fell below an objective standard of reasonableness”
and thus there was no genuine dispute of material fact. Bryant
appeals.

ISSUE AND STANDARD OF REVIEW

¶9 Bryant asserts that the district court erred in granting
summary judgment in the State’s favor. 4 “We review a

4. Bryant further argues that the district court erred in ruling that
he could not establish ineffective assistance of counsel because
he failed to move to withdraw his guilty plea or file an appeal in
the underlying criminal case and also because his attorneys were
able, through the plea agreement, to significantly reduce the
number and severity of the charges against him. Because we
conclude that Bryant does not provide legally sufficient reasons
for why he should not be held to his plea colloquy statements
and the signed plea agreement, no genuine dispute of material
fact exists regarding Bryant’s attorneys’ effective assistance, and
we have no occasion to reach these other issues.

20190556-CA 5 2021 UT App 30
 Bryant v. State

post-conviction court’s grant of summary judgment for
correctness, granting no deference to the lower 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).

ANALYSIS

¶10 Under the PCRA, “a person who has been convicted and
sentenced for a criminal offense may file an action in the district
court . . . for post-conviction relief to vacate or modify the
conviction or sentence upon” showing, among other things,
“ineffective assistance of counsel in violation of the United States
Constitution or Utah Constitution.” Utah Code Ann.
§ 78B-9-104(1)(d) (LexisNexis 2018). 5 As part of this showing,
“the petitioner has the burden of pleading and proving by a
preponderance of the evidence the facts necessary to entitle the
petitioner to relief.” Id. § 78B-9-105(1)(a).

¶11 But when the State moves for summary judgment, it
“bears the initial burden of showing that it is entitled to
judgment and that there is no genuine issue of material fact that
would preclude summary judgment in its favor.” Menzies v.
State, 2014 UT 40, ¶ 81, 344 P.3d 581 (quotation simplified).
“Once the State makes that showing, the burden of proof then
shifts to the nonmoving party . . . [to] set forth specific facts
showing that there is a genuine issue for trial.” Id. (quotation
simplified). And “[i]n the context of a summary judgment
motion in a PCRA proceeding premised on a claim of ineffective

5. Because the relevant provisions of the Utah Code in effect at
the time Bryant filed his PCRA petition do not materially differ
from those currently in effect, we cite the current version of the
code for convenience.

20190556-CA 6 2021 UT App 30
 Bryant v. State

assistance of counsel, [the petitioner] ‘bears the burden of
proving his underlying legal claims of ineffective assistance of
counsel.’” Jackson v. State, 2015 UT App 217, ¶ 13, 359 P.3d 659
(quoting Menzies, 2014 UT 40, ¶ 81).

¶12 Here, the State met its burden by showing there is no
genuine issue of material fact regarding whether Bryant received
ineffective assistance of counsel. It did so by pointing to Bryant’s
signed plea agreement and statements he made during the plea
colloquy in which he categorically stated that he was satisfied
with his attorneys’ representation.

¶13 Upon the State’s satisfaction of its initial burden, the
burden then shifted to Bryant to set forth specific facts showing
that a genuine issue of fact existed for trial. This showing cannot
be made in a free-wheeling way. Rather, Bryant’s “affidavit
cannot contradict his [signed plea agreement and] in-court
responses to the district court’s colloquy unless he provides an
adequate reason for the contradiction.” 6 See Berrett v. State, 2018

6. Bryant asserts that the district court “applied the wrong legal
standard” when it ruled that “he ‘lost his ability to argue that his
attorneys were deficient in facilitating and consummating the
plea agreement’” based on the signed plea agreement and his
statements during the plea colloquy to the contrary. Bryant
argues that “[s]tatements in plea proceedings are not an absolute
bar to demonstrating that a petitioner is entitled to
post-conviction relief because of ineffective assistance of
counsel.”
We disagree with Bryant’s characterization of the court’s
ruling. We do not read it as categorically denying Bryant the
opportunity to present adequate reasons for why he should be
able to contradict his previous statements. Rather, we read the
court’s ruling as simply stating that based on the facts of this
(continued…)

20190556-CA 7 2021 UT App 30
 Bryant v. State

UT App 55, ¶ 35, 420 P.3d 140. Thus, in this case, to demonstrate
a genuine issue of material fact, Bryant must advance legally
sufficient reasons for why he would, both in his written
agreement and his plea colloquy, unqualifiedly and without
hesitation inform the district court that he was satisfied with his
attorneys’ representation if these assertions were not, in fact,
true.

¶14 Bryant’s reasoning for why he would falsely inform the
court that his attorneys provided competent representation, with
which he was satisfied, is that he felt compelled “to say what
was necessary to accept the plea because he was afraid of going
to trial with an unprepared attorney and he could not afford to
hire another attorney,” having already paid $91,000 in attorney
fees. These are not adequate reasons given the facts of this case.

¶15 As Bryant admits on appeal, he “discovered three weeks
before trial that [his attorneys] had not investigated and ‘[were]
not prepared to mount any kind of defense at trial.’” And yet,
despite this knowledge, Bryant categorically informed the court
that he was satisfied with his attorneys’ assistance. On appeal,
Bryant attempts to further show how unprepared his attorneys
were, but most, if not all, of these facts were already known to
him at the time he agreed to the plea deal. This is not a case, for
example, in which a defendant’s attorneys affirmatively assured
him that they had done an investigation and then he found out
later, after he had been sentenced, that they misrepresented what
they had done to prepare. Rather, in this case, Bryant was well
aware of their alleged unpreparedness before he accepted the
plea deal, and yet he informed the court of his satisfaction with
their representation and his desire to accept the plea deal. On

(…continued)
case, Bryant lost the ability to contradict the statements because
his explanations for the inconsistency were inadequate.

20190556-CA 8 2021 UT App 30
 Bryant v. State

this point, we agree with the State that “[m]ere self-serving
statements contradicting [Bryant’s] representations to the court
during his plea hearing, without more, are insufficient” to create
a genuine dispute of material fact. Rather than providing
adequate reasons for misleading the court, Bryant appears to be
suffering from buyer’s remorse for taking the plea deal. But
second thoughts are insufficient to excuse him from his plea
agreement and to undercut his colloquy statements to the court.

¶16 If we accepted Bryant’s explanation as adequate, we
would be “condoning the practice by defendants of providing
untruthful responses to questions during plea colloquies,” which
“we simply will not do.” Ramos v. Rogers, 170 F.3d 560, 566 (6th
Cir. 1999). See Blackledge v. Allison, 431 U.S. 63, 74 (1977)
(“Solemn declarations in open court carry a strong presumption
of verity” that “constitute a formidable barrier in any subsequent
collateral proceedings.”); United States v. Scalzo, 764 F.3d 739, 746
(7th Cir. 2014) (“But having admitted the facts in the Information
through his plea agreement and through his answers to the court
during his change-of-plea colloquy, Scalzo may not now deny
them.”); Ramos, 170 F.3d at 566 (“[T]he very serious nature of
claims such as these mandates that a defendant must be bound
to the answers he provides during a plea colloquy.”). Cf. Webster
v. Sill, 675 P.2d 1170, 1172–73 (Utah 1983) (“The purpose of
summary judgment is not to weigh the evidence. But when a
party takes a clear position in a deposition, that is not modified
on cross-examination, he may not thereafter raise an issue of fact
by his own affidavit which contradicts his deposition, unless he
can provide an explanation of the discrepancy. A contrary rule
would undermine the utility of summary judgment as a means
for screening out sham issues of fact.”) (quotation simplified).

¶17 Bryant’s assertion that he felt compelled to take the plea
deal because he could not afford a new attorney who would take
his case to trial is also unavailing. The plea agreement
specifically informed him that one of the rights he could invoke

20190556-CA 9 2021 UT App 30
 Bryant v. State

if he rejected the plea deal was “that if [he] cannot afford one, an
attorney will be appointed by the court at no cost to [him].”
Thus, if he had become indigent, Bryant knew that he could
request a new attorney at no cost to himself if he informed the
court of his dissatisfaction with his attorneys’ efforts and of his
desire to proceed to trial. Bryant did not do so. Therefore,
Bryant’s claimed economic duress is not an adequate reason for
allowing him to contradict the signed plea agreement and his
statements during the plea colloquy.

CONCLUSION

¶18 Bryant has not provided adequate reasons for why he
should not be held to his plea agreement and the statements he
made during the plea colloquy. Therefore, there is no genuine
issue of material fact and the district court did not err in granting
the State’s motion for summary judgment.

¶19 Affirmed.

20190556-CA 10 2021 UT App 30