State v. Magness

2017 UT App 130

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROBERT MORGAN MAGNESS,
Appellant.

Opinion
No. 20150417-CA
Filed July 28, 2017

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 131903746

Craig S. Cook, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES J. FREDERIC VOROS JR. and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1 Robert Morgan Magness (Defendant) was charged with
rape. Defendant pled guilty to the lesser crime of forcible sexual
abuse. Prior to sentencing Defendant made a motion to
withdraw his guilty plea on the ground that it was not
knowingly and voluntarily made. The district court denied the
motion. We reverse and remand.

BACKGROUND

¶2 Defendant was charged with rape in April 2013. A
preliminary hearing was scheduled for two months later. On the
day of the hearing, Defendant waived his right to a preliminary
 State v. Magness

hearing. Defendant subsequently pled guilty to a lesser charge
pursuant to a plea agreement. The circumstances of that waiver
and plea are contested. Defendant claims that the preliminary
hearing was not knowingly and voluntarily waived and his plea
was not knowingly and voluntarily made because he relied on
misstatements from the prosecutor.

¶3 The defense attorney representing Defendant at the
preliminary hearing filed an affidavit outlining the events of the
preliminary hearing in support of Defendant’s motion to
withdraw his guilty plea. As described in his affidavit, the
defense attorney initially intended to question the victim and
others at the preliminary hearing. The defense attorney observed
the prosecutor converse with the victim and her friend at the
preliminary hearing. The prosecutor then approached the
defense attorney and “specifically told [the defense attorney]
that the complainant informed him that she did not want the
defendant to go to prison.” Based on this information, the
defense attorney “abandoned” his plans for the preliminary
hearing, noting that in his experience “if a complainant is
favorable to my client, then it is very harmful . . . to put that
witness on the stand and cross-examine her as to very personal
and sensitive issues.” After discussing the matter with
Defendant, the defense attorney informed the court that
Defendant would waive his right to a preliminary hearing.

¶4 In support of his motion to withdraw his plea, Defendant
asserted by affidavit the same points that the defense attorney
had asserted: the prosecutor conversed with the victim and her
friend at the preliminary hearing and then approached him and
the defense attorney and told them that the victim “did not want
[Defendant] to go to prison.”

¶5 A private investigator for Defendant also provided an
affidavit concerning the preliminary hearing. The private
investigator contacted the victim in January 2014 to discuss the
events that led to the rape charge. The private investigator
asserted, “She informed me that in her mind the defendant had

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already entered a guilty plea based upon her conversations with
the prosecutor at the hearing she last attended.”1

¶6 By contrast, the State asserts that the record shows the
prosecutor had no interaction with the victim at the preliminary
hearing. The State points to the statements made by the
prosecutor in the hearing wherein Defendant pled guilty. There
the prosecutor stated, “When we met initially during the intake,
her very first impression of the case was actually she was not
seeking prison at the time and was fairly amenable to resolving
the case . . . . Since that time [she] has not communicated with
the State at all, although we’ve made multiple attempts to
contact her.”2

¶7 Between the waiver of the preliminary hearing and
Defendant’s plea, Defendant’s counsel filed various motions and
requests, including a motion to suppress evidence. All of these
issues were set for hearing in January 2015. Instead of pursuing
the motions and going to trial, Defendant pled guilty to the
lesser charge and the court found that the plea was knowingly
and voluntarily made. The plea statement Defendant signed
provided, “In exchange for the Defendant’s plea of guilty the
prosecution agrees that in the event the victim does not
affirmatively insist upon the prosecutor seeking a prison
commitment that the prosecutor will recommend probation and

1. The State does not argue that this evidence should be
excluded.

2. While this statement may imply that no contact between the
prosecutor and the victim occurred at the preliminary hearing, in
the face of affidavits of Defendant, his counsel, and the private
investigator, the implication can be taken only so far. The State
points to no express denial before the trial court disputing the
assertion that the prosecutor spoke to the victim at the
preliminary hearing.

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no prison.” The following statements were also made at the
hearing:

[Defense Counsel]: [I]t is anticipated, your Honor,
that in exchange for this guilty plea, that as the
prosecution has heretofore indicated to the Court
that unless the victim affirmatively requests a
commitment of prison for the defendant’s
behavior, that the prosecution in this matter will
recommend no prison time, and will recommend
probation in some form.

[Prosecutor]: That is correct, your Honor. Our
recommendation is simply that we would honor
the victim’s wishes. If the victim were asking for a
prison sentence, we’re not bound to not
recommend prison. If the victim is not seeking a
prison sentence, we will not go beyond her request.
That recommendation, however, does not bind the
State in any way as to jail . . . .[3]

3. We note that Defendant includes a different—and more
defense-favorable—version of this statement in his brief:
[Prosecutor]: That’s correct Your Honor. Our
recommendation is simply that we would honor
the victim’s wishes. If the victim were asking for a
prison sentence, we’re not bound to not
recommend prison and the victim is not seeking a
prison sentence. That’s not her request. That
recommendation, however, does not bind the state
in any way as to jail . . . .
(Emphasis added.) This quotation tracks a defense-produced
unofficial transcript of the plea hearing. It varies materially from
the official version. It recasts a conditional statement to read as
an affirmative assertion; thus, “If the victim is not seeking a
(continued…)

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 State v. Magness

¶8 Defendant recited his memory of the plea hearing in his
affidavit:

[My attorneys] came to me and informed me that
[the prosecutor] had agreed to reduce the
charge . . . . They also said it would be likely I
would not face any prison time because [the
prosecutor] had expressly confirmed with [my
attorneys] that the complainant in this case did not
want me to go to prison. . . . During the hearing
with the court I again heard [the prosecutor] state
that the complainant did not want a prison term
for me even though he had been unable to contact
her for several months. Based upon his statement I
felt very good about my decision to enter into a
guilty plea in this case.[4]

¶9 The subsequent report from Adult Probation and Parole
(AP&P) recommended a term of imprisonment and included a
statement from the victim that she wanted Defendant to go to
prison for at least two years to compensate for the time that she
had suffered as the case proceeded. The victim made a similar
statement at the sentencing hearing in March 2015.

¶10 Shortly after Defendant received the AP&P report, his
private investigator again contacted the victim by telephone. He

(…continued)
prison sentence, we will not go beyond her request” becomes, in
Defendant’s brief, “the victim is not seeking a prison sentence.
That’s not her request.” We assume the misquotation was
careless rather than intentional.

4. It appears that Defendant’s memory parallels his unofficial
version of the hearing, supra note 3, rather than the official
transcript of the hearing.

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 State v. Magness

recorded the conversation, a certified transcript of which
Defendant included in his motion to withdraw his guilty plea.
The phone call included the following exchange:

[Private Investigator]: [I]nitially, when this whole
thing started and you had spoken with the district
attorney and the prosecutor . . . at a hearing they
believe you said that you did not want [Defendant]
to go to prison.

[Victim]: No, I didn’t say that.

[Private Investigator]: Ok.

[Victim]: I didn’t say that I did not want him to go
to prison. I said, “Well, it’s more important to me
that he’s on the sexual offenders list.” That was
like—I said that I wanted him to serve prison time,
but the most important thing to me was that I
wanted him to go on the sexual offenders list.

¶11 Defendant moved to withdraw his plea, claiming that his
plea was not knowingly and voluntarily made. Specifically,
Defendant claimed that due to the prosecutor’s
misrepresentations, he miscalculated the likelihood that the
victim would ask the district court to sentence him to prison.

¶12 In resolving Defendant’s motion to withdraw his plea, the
district court ruled:

Defendant contends that the prosecution made a
material misrepresentation when it stated that the
victim did not want Defendant to go to prison.
According to Defendant, this material
misrepresentation, which allegedly induced
Defendant to accept the guilty plea, amounted to
prosecutorial misconduct which violated the
Defendant’s due process rights and caused him to

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forego his right to a jury trial. The Court disagrees.
Based on the record, the Court cannot conclude
that the prosecutor made affirmative statements
contrary to what it knows to be the truth. Nor has
the prosecutor intentionally made knowing use of
false evidence by misrepresenting the nature of the
victim’s wishes. Rather, the prosecutor represented
that, at the time he spoke with the victim, she was
not seeking prison time. There is no evidence that
these representations were contrary to what the
prosecutor knew to be true.

(Citation and internal quotation marks omitted.)

¶13 In addressing Defendant’s assertion that his plea was not
knowing and voluntary, the district court ruled:

Based on the record, the Court cannot characterize
the prosecutor’s statements as misrepresentations,
unfulfilled, or unfulfillable promises. All of the
statements on the record made by the prosecution
were some version of an explanation that the
victim initially did not appear to want the
Defendant to go to prison, but the prosecution’s
recommendation remained consistently contingent
on whatever the victim wanted.

¶14 The district court continued:

Here, there are no allegations that Rule 11 [of the
Utah Rules of Criminal Procedure] was violated.
The Court is satisfied that there was compliance
with Rule [11] and that Defendant knowingly and
voluntarily entered into a guilty plea, particularly
where both the plea colloquy and the plea
agreement, which was incorporated into the plea
hearing record, clearly set forth the charges and the

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alleged conduct by [Defendant] that corresponded
with the elements of the charges, in compliance
with rule 11.

(Citation and internal quotation marks omitted.)

¶15 Accordingly, the district court denied Defendant’s motion
to withdraw his plea. Defendant was sentenced to an
indeterminate term of not less than one year and no more than
fifteen years in the Utah State Prison. Defendant appeals the
denial of his motion.

ISSUES AND STANDARDS OF REVIEW

¶16 We review the denial of a motion to withdraw a guilty
plea under an abuse of discretion standard, incorporating a clear
error standard for findings of fact and reviewing questions of
law for correctness. State v. Walker, 2013 UT App 198, ¶ 8, 308
P.3d 573.

¶17 Defendant also appeals the district court’s denial of his
request to reinstate his right to a preliminary hearing. We review
the denial of the motion to reinstate Defendant’s right to a
preliminary hearing under the same standard; thus, absent a
factual challenge, we review for correctness a district court’s
denial of a motion to withdraw the waiver of a preliminary
hearing. See State v. Aleh, 2015 UT App 195, ¶ 13, 357 P.3d 12.

ANALYSIS

I. Withdrawal of Guilty Plea

¶18 Under Utah law, “[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). “A guilty plea involves the

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waiver of several constitutional rights and is therefore valid
under the Due Process Clause of the U.S. Constitution only if it is
made ‘voluntarily, knowingly, and intelligently, with sufficient
awareness of the relevant circumstances and likely
consequences.’” State v. Alexander, 2012 UT 27, ¶ 16, 279 P.3d 371
(quoting Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)). “[I]n order
for a plea to be voluntarily and knowingly made, the defendant
must understand the nature and value of any promises made to
him.” State v. Copeland, 765 P.2d 1266, 1274 (Utah 1988). And
“when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be
fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).

¶19 On the record before us, we must reverse. The district
court erroneously limited its consideration of Defendant’s
motion to withdraw his plea to whether what occurred on the
record at the plea hearing complied with rule 11 of the Utah
Rules of Criminal Procedure5 and whether the prosecutor’s
misstatements constituted intentional misconduct. Further, we
determine that the misstatements made by the prosecutor
undermined the voluntariness of Defendant’s plea.

A. The District Court’s Narrow Focus on Rule 11 and
Prosecutorial Misconduct

¶20 The district court’s analysis was too narrowly focused,
looking primarily at what was said at the plea hearing and
whether the plea hearing complied with rule 11 of the Utah
Rules of Criminal Procedure. The district court should have
considered the totality of the circumstances, including the
prosecutor’s statements made prior to the plea hearing.
Additionally, the district court placed undue focus on whether

5. Rule 11 of the Utah Rules of Criminal Procedure governs the
accepting or rejecting of pleas generally. See Utah R. Crim. P. 11.

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the representations of the prosecutor constituted prosecutorial
misconduct.

¶21 Here, the district court narrowly focused its review on
whether the plea hearing, and those sources incorporated into
the plea hearing, showed a knowing and voluntary plea. This
approach is contrary to Alexander, where the Utah Supreme
Court warned against similarly limiting the analysis of a plea to
an evaluation of rule 11. 2012 UT 27, ¶ 25. “[D]etermining
whether the district court complied with rule 11 during the plea
hearing may be an appropriate step in evaluating whether the
defendant’s plea was knowing and voluntary.” Id. ¶ 24. “But in
evaluating whether a plea was knowingly and voluntarily made,
courts should not limit their analysis to compliance with rule 11
during the plea hearing.” Id. ¶ 25. Compliance with rule 11,
while a good place to start, is just that—a start. The totality of the
circumstances, including representations made outside of the
plea hearing, must be taken into account when determining
whether a plea was knowingly and voluntarily made. See id.
(“[E]ven 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.”). Accordingly, the district court should have
considered all of the prosecutor’s statements concerning the
victim’s anticipated position.

¶22 The district court also primarily considered whether the
prosecutor’s misstatements constituted intentional prosecutorial
misconduct. The district court found that the prosecutor did not
intentionally make “knowing use of false evidence by
misrepresenting the nature of the victim’s wishes.” The district
court continued, “Rather, the prosecutor represented that, at the
time he spoke with the victim, she was not seeking prison time.”
However, the district court should have considered and focused
on all representations made by the prosecutor prior to the plea
being entered. The problem with the district court’s approach is
twofold. First, it accepted a representation which was
demonstrably false—the victim stated she never said she did not

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want Defendant to go to prison. Second, the district court
focused on whether the misstatements were made intentionally.
Whether the misstatements of the prosecutor were intentional is
immaterial to the question of whether Defendant’s plea was
knowingly and voluntarily made. If a prosecutor makes
misstatements and the defendant relies upon the misstatements,
a substantial question arises as to whether Defendant knowingly
and voluntarily entered into a plea. See Brady v. United States, 397
U.S. 742, 755 (1970) (reasoning that a plea should stand where a
guilty plea is entered by someone “fully aware of the direct
consequences, including the actual value of any commitments
made to him” unless induced by, among other things,
misrepresentation by prosecutors (citation and internal
quotation marks omitted)).

¶23 In sum, when evaluating whether a plea was knowingly
and voluntarily made, compliance with rule 11 is not dispositive
and, in this case, determining whether the prosecutor’s
misrepresentations were intentional is immaterial. The district
court should have evaluated all of the evidence to determine
whether the prosecutor’s statements undermined Defendant’s
plea. We next examine whether Defendant’s plea was
undermined.

B. The Misrepresentations by the Prosecutor Undermined
the Voluntariness of Defendant’s Plea

¶24 The prosecutor’s representations undermined the
voluntariness of Defendant’s plea because they caused
Defendant not to “understand the nature and value of any
promises made to him.” State v. Copeland, 765 P.2d 1266, 1274
(Utah 1988). In Brady, the United States Supreme Court
explained,

Often the decision to plead guilty is heavily
influenced by the defendant’s appraisal of the
prosecution’s case against him and by the apparent
likelihood of securing leniency should a guilty plea

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be offered and accepted. . . . A defendant is not
entitled to withdraw his plea merely because he
discovers long after the plea has been accepted that
his calculus misapprehended the quality of the
State’s case or the likely penalties attached to
alternative courses of action. More particularly,
absent misrepresentation or other impermissible
conduct by state agents . . . a voluntary plea of
guilty intelligently made in the light of the then
applicable law does not become vulnerable because
later judicial decisions indicate that the plea rested
on a faulty premise.

397 U.S. at 756–57. Our supreme court has likewise stated,

[A] plea of guilty entered by one fully aware of the
direct consequences, including the actual value of
any commitments made to him by the court,
prosecutor, or his own counsel, must stand unless
induced by threats[,] . . . misrepresentation[,] . . . or
perhaps by promises that are by their nature
improper . . . .

Copeland, 765 P.2d at 1274 (first alteration in original) (emphases
omitted) (quoting Brady, 397 U.S. at 755).

¶25 Here, the prosecutor’s representations of the victim’s
likely sentencing request significantly affected Defendant’s
calculus as to “the apparent likelihood of securing leniency
should a guilty plea” be entered. See Brady, 397 U.S. at 756. At
the preliminary hearing the prosecutor represented that the
victim did not want Defendant to go to prison. Next, on the day
of the plea the prosecutor again represented to Defendant
through counsel that the victim did not want defendant to go to
prison. Finally, when presenting the plea resolution to the court,
the prosecutor represented again that “[the victim] was not
seeking prison.” However, by way of a recorded statement

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obtained by Defendant’s investigator, the victim maintains, “I
didn’t say that” and “I said that I wanted him to serve prison
time . . . .” Although the State surmises in its brief that the
prosecutor did not speak to the victim at the preliminary
hearing,6 both Defendant and his counsel testified via affidavit
that they saw the prosecutor talking with the victim at the
preliminary hearing. Given the absence of an affidavit in
opposition rebutting the affidavits of Defendant and his counsel,
the only record before us establishes that the representations
were made.

¶26 The prosecutor’s representations thus led Defendant to
reasonably believe that the victim would likely not seek prison
and that the prosecutor would follow suit. By misleading
Defendant as to the victim’s intent with respect to seeking a
prison sentence in this case—whether intentional or not—the
State precluded Defendant from knowingly assessing the
likelihood of securing leniency. In other words, because of the
“misrepresentation . . . made to him by the . . . prosecutor,”
Defendant was not “aware of the direct consequences, including
the actual value of any commitments made to him.” Id. at 755
(citation and internal quotation marks omitted); see also Copeland,
765 P.2d at 1275 (adopting the Michigan Court of Appeals’s
reasoning that a defendant should be allowed to withdraw his
plea where he “surrendered his right to trial in apparent
misapprehension of the value of commitments made to him”
(quoting People v. Lawson, 255 N.W.2d 748, 750 (Mich. Ct. App.
1977))).

¶27 Under the terms of the plea agreement, Defendant had to
assess the probability that the victim would seek a prison
sentence. The primary information Defendant maintains he
relied upon in calculating this risk was the representations of the
prosecutor. Defendant’s calculus of the likelihood that the victim

6. The State points to the prosecutor’s statement at the plea
hearing that he had not talked to the victim since “intake.”

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would ask for prison was based on erroneous information
concerning the victim’s past expressions relating to whether she
would ask the judge to impose a prison sentence. Being told that
the victim had earlier stated that she did not want Defendant to
go to prison, while not conclusive as to what might actually
happen at sentencing, likely and reasonably gave Defendant
reason to believe the recommendation at sentencing would be
similar. But in reality, the victim never said she did not want
Defendant to go to prison.

¶28 We conclude that because of the prosecutor’s
representations, “it is possible that [Defendant] was genuinely
and legitimately confused about” the likelihood that the victim
would ask the court to impose a prison sentence and easily could
have miscalculated the likely punishment that would flow from
his plea. See Copeland, 765 P.2d at 1274. Thus, Defendant’s plea
was not knowingly and voluntarily made. See id. at 1274–75.
Accordingly, Defendant “should be allowed to withdraw his
plea.” See id. at 1276.

¶29 Had Defendant simply miscalculated the likelihood that
the victim would make a sentencing request for prison, a basis
for withdrawing the guilty plea would likely not exist. But here,
Defendant’s calculus in moving forward with the plea included
representations by the prosecutor, which, upon the record
presently before us, appear false. Accordingly, the district court
applied an improper legal standard by too narrowly focusing
only on what was said at the plea hearing, which by definition
constitutes an abuse of discretion. Hollenbach v. Salt Lake City
Corp., 2016 UT App 64, ¶ 9, 372 P.3d 55 (“[L]egal errors, such as
the incorrect interpretation of a statute or the application of an
improper legal standard, are usually an abuse of discretion.”
(quoting Schroeder v. Utah Attorney Gen.’s Office, 2015 UT 77, ¶ 49,
358 P.3d 1075)). Under such circumstances, Defendant should
have been allowed to withdraw his plea. On this basis we
reverse.

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II. Waiver of Preliminary Hearing

¶30 Because the district court denied Defendant’s motion to
withdraw his plea, it had no opportunity to consider
Defendant’s claim that his right to a preliminary hearing should
be reinstated. “The general rule applicable in criminal
proceedings, and the cases are legion, is that by pleading guilty,
the defendant is deemed to have admitted all of the essential
elements of the crime charged and thereby waives all
nonjurisdictional defects, including alleged pre-plea
constitutional violations.” State v. Rhinehart, 2007 UT 61, ¶ 15,
167 P.3d 1046 (citation and internal quotation marks omitted).
We recognize that Defendant maintains that the waiver of his
preliminary hearing was induced by the same misstatements of
the prosecutor that induced his guilty plea. And the analysis
above may very well lead to the result Defendant seeks.
However, the district court should address this claim in the first
instance. Accordingly, we remand this case for further
proceedings, including the district court deciding whether
Defendant’s preliminary hearing right should be reinstated.

CONCLUSION

¶31 The sentence and judgment of the district court is vacated.
Defendant shall be allowed to withdraw his plea, and the case is
remanded for further proceedings, including consideration of
Defendant’s entitlement to a preliminary hearing.

¶32 Reversed.

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