2015 UT App 71
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
RAYMOND C. VELARDE,
Defendant and Appellant.
Opinion
No. 20130812-CA
Filed March 26, 2015
Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 121902632
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES JAMES Z. DAVIS and KATE A. TOOMEY concurred.
VOROS, Judge:
¶1 Raymond C. Velarde appeals his conviction for arranging
to distribute a controlled substance. Velarde contends that the
district court erred in denying his motion to withdraw his guilty
plea. We conclude that the district court acted within its
discretion in denying the motion. Accordingly, we affirm.
BACKGROUND
¶2 A deputy for the Weber County Sheriff’s Office testified
to the following facts at Velarde’s preliminary hearing. On
December 4, 2012, a confidential informant contacted Velarde by
phone. Velarde arranged to meet the informant and to sell him
State v. Velarde
three to four ounces of methamphetamine. The deputy listened
in on the call and accompanied the informant to the meeting
place. The informant described Velarde and Velarde’s car. When
Velarde arrived, the deputy arrested him. The deputy found four
ounces of methamphetamine in Velarde’s car. Velarde admitted
to the deputy that he had agreed to meet the informant and to
sell him methamphetamine.
¶3 The State charged Velarde with arranging to distribute a
controlled substance under section 58-37-8(1)(a)(ii) of the Utah
Code. That section states that “it is unlawful for any person to
knowingly and intentionally: . . . (ii) distribute a controlled or
counterfeit substance, or to agree, consent, offer, or arrange to
distribute a controlled or counterfeit substance.” Utah Code
Ann. § 58-37-8(1)(a)(ii) (LexisNexis 2012).
¶4 Velarde pled guilty as charged. The factual basis written
on the plea affidavit said only “as stated in court.” The court
held a plea colloquy before accepting the guilty plea. The court
verified that Velarde had read and understood the plea
agreement. The judge then asked Velarde what he had done, and
Velarde stated that he had methamphetamine on his person and
“was going to distribute it.” The court accepted Velarde’s guilty
plea and found that Velarde entered it knowingly and
voluntarily. Velarde later moved to withdraw his guilty plea.
The court denied the motion. The court sentenced Velarde to an
indeterminate term of one to fifteen years in prison. Velarde
appeals the district court’s denial of his motion to withdraw his
guilty plea.
ISSUE AND STANDARD OF REVIEW
¶5 Velarde contends that the district court erred when it
denied his motion to withdraw his guilty plea. We review the
district court’s denial of a motion to withdraw a guilty plea for
an abuse of discretion. See State v. Beckstead, 2006 UT 42, ¶ 7, 140
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State v. Velarde
P.3d 1288. “As to the subjective inquiry of whether a defendant
understood the factual and legal basis for the plea and made an
informed decision to waive the implicated constitutional rights,
we owe deference to the district court.” State v. Candland, 2013
UT 55, ¶ 9, 309 P.3d 230.
ANALYSIS
¶6 Velarde contends that the court failed “to strictly comply
with Rule 11(e)(4)(A) of the Utah Rules of Criminal Procedure.”
Velarde maintains that he did not knowingly and voluntarily
enter his plea, because “the court failed to clarify and articulate
that the factual basis mirrored the appropriate elements of the
offense and that [he] understood he was admitting to those
facts.” Specifically, Velarde argues that “*t+he court’s colloquy
did not show that Mr. Velarde understood that he was admitting
to agreeing, consenting, offering or arranging in any way.” See
Utah Code Ann. § 58-37-8(1)(a)(ii).
¶7 Rule 11 provides that the court may not accept a guilty
plea until it has found that “the defendant understands the
nature and elements of the offense to which the plea is entered,”
Utah R. Crim. P. 11(e)(4)(A), and that “there is a factual basis for
the plea,” id. R. 11(e)(4)(B). “A factual basis is sufficient if it
establishes that the charged crime was actually committed by the
defendant or, if the defendant refuses or is otherwise unable to
admit culpability, that the prosecution has sufficient evidence to
establish a substantial risk of conviction.” Id.
¶8 Rule 11 governs the taking of guilty pleas, but not their
withdrawal. “Although rule 11 provides guidance for the entry
of guilty pleas, any attempt to withdraw that plea is governed by
statute.” State v. Alexander, 2012 UT 27, ¶ 19, 279 P.3d 371
(citation omitted). Utah Code section 77-13-6 provides in part
that a “plea of guilty . . . may be withdrawn only upon leave of
the court and a showing that it was not knowingly and
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State v. Velarde
voluntarily made.” Utah Code Ann. § 77-13-6(2)(a) (LexisNexis
2012). “This statutory standard mirrors the showing necessary
for defendants to prove that their pleas are unconstitutional.”
Alexander, 2012 UT 27, ¶ 19. “Thus, even if there was a violation
of rule 11 during the plea hearing, appellate courts must
continue to inquire into whether there is evidence that the plea
was nonetheless knowingly and voluntarily made.” Id. ¶ 25.
¶9 The existence of a factual basis for a guilty plea “shall be
determined by examining the record as a whole.” Utah R. Crim.
P. 11(l). The record as a whole includes “transcripts of the plea
hearing and . . . the circumstances surrounding the case,”
Candland, 2013 UT 55, ¶ 16, including the plea affidavit and—of
particular relevance here—the transcript of the preliminary
hearing, see Willett v. Barnes, 842 P.2d 860, 863 (Utah 1992)
(stating that “what occurred at the preliminary hearing” may be
“sufficient to provide a factual basis for plaintiff’s later plea”).
¶10 Velarde heard the charge and its elements during the
reading of the information and waived a later reading of the
information, saying that he understood the charges. In addition,
at Velarde’s preliminary hearing, a deputy of the Weber County
Sheriff’s Office testified that Velarde admitted to arranging the
sale of methamphetamine to a friend (who turned out to be the
confidential informant). Velarde arrived at the place arranged
for the sale of the methamphetamine and was identified by the
informant. Velarde confessed that he planned to sell the four
ounces of methamphetamine recovered from his vehicle. In
connection with the plea agreement, Velarde read, understood,
and signed the plea affidavit, which described the elements of
the crime charged and the rights Velarde waived by pleading
guilty. And during the plea colloquy, he admitted to having
methamphetamine and said he was “going to distribute it.”
¶11 This record evidence demonstrates that Velarde
understood the nature of the offense to which he pled guilty and
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State v. Velarde
the factual basis for his guilty plea. In particular, the evidence
presented at his preliminary hearing provides an ample factual
basis for the charge of arranging to distribute a controlled
substance. Consequently, we conclude that the district court
acted well within its discretion in ruling that Velarde’s plea was
made knowingly and voluntarily.
CONCLUSION
¶12 The judgment of the district court is affirmed.
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