2018 UT App 160
THE UTAH COURT OF APPEALS
BENJAMIN ARRIAGA,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20150911-CA
Filed August 23, 2018
Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 120404690
Emily Adams, Attorney for Appellant 1
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred. JUDGE JILL
M. POHLMAN concurred in part and concurred in the result in
part, with opinion.
1. Postconviction proceedings are civil in nature, and defendants
who bring such petitions do not have the right to appointed
counsel. See Hutchings v. State, 2003 UT 52, ¶ 20, 84 P.3d 1150.
But when Appellant filed his postconviction petition pro se, he
requested that counsel be appointed, and the district court
granted this request. If a petition is not summarily dismissed, the
court may appoint counsel “on a pro bono basis” to represent
the defendant. See Utah Code Ann. § 78B-9-109(1) (LexisNexis
2012). We appreciate the district court’s decision to appoint
counsel in this case because it has helped us better understand
Appellant’s claims and arguments. And we appreciate the
willingness of appellate counsel, as well as that of James D.
Gilson, who represented Appellant below, to accept these
appointments.
Arriaga v. State
ORME, Judge:
¶1 Appellant Benjamin Arriaga (Defendant) appeals the
district court’s order granting the State’s summary judgment
motion and denying his petition for postconviction relief.
Defendant pled guilty to murder, a first degree felony, and was
sentenced to prison in 2011. He now challenges his guilty plea
on the grounds that it was not knowing or voluntary and that he
received ineffective assistance of counsel. We affirm the
summary judgment denying his petition for postconviction
relief.
BACKGROUND
¶2 Defendant admitted to police that, on April 4, 2010, he
shot and killed the man (Victim) who was having an affair with
his wife. He explained that, having discovered the affair, he
angrily confronted Victim in a park. Defendant then pointed a
gun at Victim, intending to scare him into admitting to the affair.
When Victim admitted to sleeping with Defendant’s wife,
Defendant replied that “this kind of thing is not forgiven.”
Defendant said that Victim then lunged for the gun, and a
struggle ensued. Defendant told police that the gun discharged
several times in the course of the struggle, and Victim was shot
once in the abdomen, once in the leg, twice in the back, and once
in the back of the head.
¶3 The State charged Defendant with murder, a first degree
felony, see Utah Code Ann. § 76-5-203(3)(a) (LexisNexis 2017);
the purchase, transfer, possession, or use of a firearm by a
restricted person, a second degree felony, see id. § 76-10-503(2)(a);
and obstruction of justice, a second degree felony, see id. § 76-8-
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306(3)(a). 2 Defendant entered into a plea bargain, agreeing to
plead guilty to murder if the other charges were dismissed. At
the plea hearing, Defendant acknowledged he knew that by
pleading guilty he was waiving his constitutional rights,
including the right to the presumption of innocence and the
right to a jury trial. 3 Defendant further acknowledged that he
understood everything that his counsel had discussed with him,
including the plea affidavit. The court then inquired whether
Defendant had any questions about the plea affidavit, to which
Defendant replied that he did not.
¶4 After trial counsel described the factual basis for
Defendant’s murder charge, Defendant made statements
implying that he acted in self-defense:
[TRIAL COUNSEL]: Your Honor, on April 4th 2010
in Salt Lake County [Defendant] confronted a man
who had been sleeping with his wife. An argument
and subsequent fight took place at which time he
pulled out a firearm and he shot the man killing
him.
THE COURT: Is that what happened, [Defendant]?
2. Because the statutory provisions in effect at the relevant time
do not differ in any material way from those now in effect, we
cite the current version of the Utah Code for convenience.
3. Defendant’s primary language at the time of the plea hearing
was Spanish. To ensure Defendant understood the court
proceedings, interpreters were present and the plea affidavit was
written in both English and Spanish. However, an interpreter
was not present during out-of-court discussions between
Defendant and his trial counsel.
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THE DEFENDANT: I defended myself. It was not
my intention. I never thought about hurting him.
....
[TRIAL COUNSEL]: Your Honor, we had—
discussed the imperfect self-defense concept and
that he did pull out a gun to get the man to confess
to sleeping with his wife. And that the man
charged at him but he was unarmed. So that is why
he used a gun.
THE COURT: I will find that that is a sufficient
factual basis.
THE DEFENDANT: He was drugged and drunk
and I didn’t know if he had a weapon, a knife and
that’s why I—
After Defendant made these statements, the district court
clarified with Defendant that he intentionally killed Victim by
asking Defendant whether he knew that by pulling the trigger he
would cause Victim’s death. Defendant acknowledged that he
did. After entering his guilty plea, Defendant asked to be
sentenced immediately and waived the right to withdraw his
plea.
¶5 After a few months in prison, Defendant filed a petition
under the Post-Conviction Remedies Act, see Utah Code Ann.
§§ 78B-9-101 to -405 (LexisNexis 2012), arguing that his plea was
involuntary because his attorney explained his plea to him
without the assistance of an interpreter. He also raised an
ineffective-assistance-of-counsel claim on that same basis,
specifically arguing that counsel’s failure to use an interpreter
resulted in Defendant not knowing that he had a valid
self-defense argument and could have taken his case to trial. The
State filed a response to his petition, asserting that Defendant
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had not carried his burden of establishing by a preponderance of
the evidence that his trial counsel’s performance was deficient
and prejudicial. The State also contended that the nature of
Defendant’s plea was both voluntary and knowing because any
misunderstandings regarding his plea that arose out of his
communications with his attorney were cured by his plea
affidavit and plea colloquy, both of which had been translated
into Spanish.
¶6 An evidentiary hearing was held, but suspended, and in
the meantime, the State moved for summary judgment. Granting
the State’s motion, the district court concluded that Defendant
had failed to show that trial counsel’s performance was deficient
and that all constitutional prerequisites for a valid guilty plea
had been satisfied in Defendant’s case. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 Defendant contends that the district court erred in
granting the State’s motion for summary judgment for two
reasons. First, he argues that his plea was not knowing or
voluntary, asserting he did not understand the essential
elements of his murder charge at the time of his plea. Second, he
argues that his trial counsel’s performance was deficient for
failure to use an interpreter during their out-of-court
discussions.
¶8 “We review an appeal from an order dismissing or
denying a petition for postconviction relief for correctness
without deference to the lower court’s conclusions of law.”
Gardner v. State, 2010 UT 46, ¶ 55, 234 P.3d 1115 (citation and
internal quotation marks omitted). “Similarly, we review a grant
of summary judgment for correctness, granting no deference to
the lower court.” Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345
(brackets, citation, and internal quotation marks omitted).
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ANALYSIS
I. Defendant’s Plea
¶9 Defendant contends that his self-defense statements and
the circumstances surrounding his guilty plea demonstrate that
he did not understand the elements of the murder charge against
him, which rendered his plea unknowing and involuntary.4 For
a guilty plea to be valid under the Due Process Clause of the
Fourteenth Amendment, it must be made “voluntarily,
knowingly, and intelligently, with sufficient awareness of the
relevant circumstances and likely consequences.” Bradshaw v.
Stumpf, 545 U.S. 175, 183 (2005) (citation and internal quotation
marks omitted). For that reason, “[i]t is the responsibility of the
district court to ensure that defendants enter pleas knowingly
and voluntarily.” State v. Candland, 2013 UT 55, ¶ 14, 309 P.3d
230. And rule 11 of the Utah Rules of Criminal Procedure
provides courts with a “roadmap for ensuring that defendants
receive adequate notice of their rights and for examining
defendants’ subjective understanding and intent.” Id.
¶10 Rule 11 states that a district court may not accept a guilty
plea until it has found that the defendant understands his
constitutional rights, including his right to the presumption of
innocence and his right to a jury trial. Utah R. Crim. P. 11(e)(3).
Additionally, the court must ensure that the defendant knows
4. The State argues that Defendant’s involuntary plea claim is
procedurally barred as Defendant did not raise it in a motion to
withdraw his plea before being sentenced. See Utah Code Ann.
§ 78B-9-106(1)(c) (LexisNexis Supp. 2017) (stating that a person is
ineligible for postconviction relief on any ground that “could
have been but was not raised at trial or on appeal”). Defendant’s
argument is unsuccessful in this appeal, so we do not dwell on
whether it is also procedurally barred.
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“the nature and elements of the offense to which the plea is
entered.” Id. R. 11(e)(4)(A). It is not enough for the district court
to give notice to the defendant; the court must also find that “the
defendant actually understood the charges, the constitutional
rights, and the likely consequences of the plea and voluntarily
chose to plead guilty.” Candland, 2013 UT 55, ¶ 16 (emphasis
added).
¶11 Defendant asserts that he lacked a meaningful
understanding of the murder charge, and he points to his
self-defense statements during the plea colloquy to demonstrate
this lack of understanding. But the transcript of the plea colloquy
shows that any misunderstanding Defendant may have had was
inconsequential given his acknowledgements during the plea
colloquy that he understood the contents of his plea affidavit
and that he understood everything counsel had explained to
him.
¶12 Within the plea affidavit, prepared in both English and
Spanish, Defendant stated that the elements of the crime for
which he was pleading guilty were that “[Defendant] did
knowingly and intentionally cause[] the death of another.” He
also stated that the facts providing a basis for these elements
were that on April 4, 2010, he “confront[ed] a man who slept
[with his] wife” and “fought with the man and subsequently
shot him, killing him.” Based on Defendant’s assurances in the
plea colloquy that he had reviewed and understood his plea
affidavit, there is no doubt that Defendant understood the
elements of the murder charge at the time of his guilty plea.
¶13 Defendant also argues that his self-defense claims
“negated an essential element of the murder charge and
provided objective evidence that he did not understand the
proceedings.” When a defendant puts an affirmative defense at
issue during trial, “the State carries the burden of proving
beyond a reasonable doubt each element of an offense, including
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the absence of an affirmative defense[.]” State v. Low, 2008 UT 58,
¶ 45, 192 P.3d 867 (citation and internal quotation marks
omitted). Accordingly, a “necessary element of a murder
conviction is the absence of affirmative defenses.” Id. When
Defendant made his statements indicating that he acted in self-
defense, his trial counsel explained to the court that the concept
of imperfect self-defense had been explained to Defendant,
specifically in relation to the facts of his case, including counsel’s
assessment that it was not a viable defense. 5 And “[w]here a
defendant is represented by competent counsel, the court
usually may rely on that counsel’s assurance that the defendant
has been properly informed of the nature and elements of the
charge to which he is pleading guilty.” Bradshaw v. Stumpf, 545
5. Imperfect self-defense “is an affirmative defense to a charge of
murder” in cases where “the defendant caused the death of
another . . . under a reasonable belief that the circumstances
provided a legal justification or excuse for the conduct although
the conduct was not legally justifiable or excusable under the
existing circumstances.” Utah Code Ann. § 76-5-203(4)(a)
(LexisNexis 2017). And so the “difference between perfect
self-defense and imperfect self-defense is the determination of
whether the defendant’s conduct was, in fact, legally justifiable
or excusable under the existing circumstances.” State v. Low, 2008
UT 58, ¶ 32, 192 P.3d 867 (citation and internal quotation marks
omitted). Cf. Utah Code Ann. § 76-2-402(1)(b) (LexisNexis 2017)
(providing that, in cases of perfect self-defense, lethal force is
justified “only if the person reasonably believes that force is
necessary to prevent death or serious bodily injury . . . as a result
of another person’s imminent use of unlawful force”). But the
use of lethal force is not justified when the defendant “initially
provokes the use of force against the person with the intent to
use force as an excuse to inflict bodily harm upon the assailant”
or when the defendant “was the aggressor” and did not
withdraw from the encounter. Id. § 76-2-402(2)(a)(i), (iii).
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U.S. 175, 183 (2005). Trial counsel assured the district court that
the concept of imperfect self-defense had been explained to
Defendant, and where Defendant had previously told the court
he understood everything counsel had explained to him, it was
reasonable for the court to conclude that Defendant understood
how the imperfect self-defense theory applied in his case.
Furthermore, with the benefit of an interpreter during the plea
colloquy, Defendant made no objection to trial counsel’s
assurance that Defendant understood.
¶14 We do, however, recognize that Defendant’s statements
suggesting possible self-defense did raise a question of whether
he intended to kill Victim because he stated, “It was not my
intention. I never thought about hurting him.” It was therefore
necessary for the court to address the conflict between this
statement and his plea affidavit. See State v. Maguire, 830 P.2d
216, 217 (Utah 1991) (“‘Any omissions or ambiguities in the
affidavit must be clarified during the plea hearing, as must any
uncertainties raised in the course of the plea colloquy.’”)
(quoting State v. Smith, 812 P.2d 470, 477 (Utah Ct. App. 1991)).
And the court did address this conflict by asking Defendant
whether he knew that his actions, specifically pulling the trigger
of the gun, would cause Victim’s death. Defendant
acknowledged that he did.
¶15 Defendant further contends that he did not understand
his guilty plea because he “speaks Spanish, has a fifth-grade
education, and did not speak English except a few random
words at the time he pleaded guilty,” while “[h]is trial counsel
did not speak Spanish.” He additionally claims not to have read
the plea affidavit before signing it. But these claims contradict
Defendant’s statements to the district court during his plea
hearing. Defendant is bound by his statements because “the
representations of the defendant, his lawyer, and the prosecutor
at [a plea] hearing, as well as any findings made by the judge
accepting the plea, constitute a formidable barrier in any
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subsequent collateral proceedings. Solemn declarations in open
court carry a strong presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 73–74 (1977). “Accordingly, the truth and accuracy of
a defendant’s statements during the [plea colloquy] should be
regarded as conclusive in the absence of a believable, valid
reason justifying a departure from the apparent truth of his [plea
colloquy] statements.” United States v. Weeks, 653 F.3d 1188, 1205
(10th Cir. 2011) (citation and internal quotation marks omitted).
Here, there is no valid reason to doubt the truthfulness of
Defendant’s statements to the district court during his plea
colloquy because an interpreter was present and Defendant
professed to understand everything discussed with counsel and
the contents of his plea affidavit. Because there is nothing in the
record that suggests Defendant lacked an understanding of the
elements of the murder charge against him or anything but his
own later assertions that he did not actually understand the
essence of imperfect self-defense, the district court did not err in
concluding on summary judgment that his plea was voluntarily
and knowingly made.
II. Assistance of Counsel
¶16 Defendant contends that his trial counsel’s performance
was deficient because no interpreter was present during their
out-of-court discussions prior to his plea hearing. To prevail on
an ineffective assistance of counsel claim, a defendant must
show that (1) “counsel’s performance was deficient in that it ‘fell
below an objective standard of reasonableness’” and
(2) “counsel’s performance was prejudicial in that ‘there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Menzies v. Galetka, 2006 UT 81, ¶ 87, 150 P.3d 480 (quoting
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
¶17 Defendant must first show that “counsel’s representation
fell below an objective standard of reasonableness.” Strickland,
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466 U.S. at 688. Defendant asserts that the language barrier with
his trial counsel prevented him from becoming aware of his right
to the presumption of innocence and his right to plead not
guilty. He claims that his counsel’s conduct fell below the
standard of reasonableness when he did not secure an
interpreter to better communicate these rights to Defendant.
Nevertheless, any “[j]udicial scrutiny of counsel’s performance
must be highly deferential” and “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689. And whether
counsel’s conduct was reasonable “may be determined or
substantially influenced by the defendant’s own statements or
actions.” Id. at 691.
¶18 Here, Defendant claims that he only knew a few words of
English at the time of his plea hearing and that trial counsel did
not speak Spanish. But with an interpreter present, Defendant
never advised the court that there was any issue in
communicating with his counsel. He specifically acknowledged
in the plea colloquy, during which an interpreter was present,
that he understood everything counsel had explained to him.
Had there been an insurmountable language barrier, Defendant
had the opportunity to raise this issue with the court in the plea
hearing on several occasions when asked by the court whether
he understood everything his counsel had discussed with him
and whether he had questions about the plea affidavit. We
therefore are not persuaded that trial counsel acted
unreasonably in failing to secure an interpreter for his
out-of-court consultations with Defendant.
¶19 We do appreciate the importance of interpreters, but any
suggestion that we should err on the side of requiring an
interpreter in this case is dispelled by the other basis on which
Defendant’s ineffective assistance claim can be rejected.
Defendant does nothing to establish that counsel’s failure to
secure an interpreter was prejudicial. To contest his guilty plea
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Arriaga v. State
on the ground of ineffective assistance of counsel, Defendant
“must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial and that such a decision would
have been rational under the circumstances.” Rippey v. State,
2014 UT App 240, ¶ 14, 337 P.3d 1071 (emphasis in original)
(citation and internal quotation marks omitted). Defendant must
do more than allege that he would not have pled guilty had his
counsel secured an interpreter for their out-of-court discussions.
Rather, we “look to the factual circumstances surrounding the
plea” and whether it would have been rational for Defendant to
reject the plea and insist on a trial. Id. (citation and internal
quotation marks omitted).
¶20 At the time of the State’s plea offer, Defendant had
already confessed to killing Victim, and a motion to suppress
that confession had been denied by the district court. Defendant
asserts that, had trial counsel better explained the elements of
murder to Defendant, he would have known he had a valid
claim for imperfect self-defense based on his statement to
officers that Victim lunged at him during the confrontation. But
the imperfect-self-defense theory is substantially undermined by
the fact that, in what Defendant characterized as a tussle over the
gun that he brought only to scare Victim, Victim was shot five
times, including twice in the back and once in the back of the
head. Based on these circumstances, there is nothing to suggest
that it would have been rational for Defendant to reject the
State’s offer to dismiss the other two felony charges against him
in exchange for his guilty plea to the murder charge.
CONCLUSION
¶21 Defendant’s statements and actions do not demonstrate
that his guilty plea was unknowing or involuntary or that his
counsel performed deficiently by not having an interpreter
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present during their out-of-court discussions. Additionally, he
fails to establish any prejudice as a result of this decision by
counsel. We thus presume Defendant’s counsel rendered
constitutionally adequate assistance, exercising reasonable
professional judgment, and the district court did not err in
granting summary judgment to the State. Accordingly, we
affirm.
POHLMAN, Judge (concurring in part and concurring in the
result in part):
¶22 I concur with the lead opinion except as to Part I, in which
I concur in the result. I am troubled by my colleagues’
conclusion that the district court adequately remedied the
conflict between the statements in Defendant’s plea affidavit and
his self-defense assertions during the plea colloquy. See supra
¶ 14. Defendant interjected statements that created a conflict
about the nature of his plea. In my view, it is questionable
whether the court’s attempts to resolve the conflict were
successful.
¶23 The court apparently recognized the significance of
Defendant’s initial assertion that he “defended [him]self,” and it
attempted to resolve the apparent conflict between his plea
affidavit and that assertion by asking defense counsel if it
changed the plea. But although counsel explained that he had
“discussed the imperfect self-defense concept” with Defendant,
he did not explain what Defendant understood. Thus, counsel’s
representation did not resolve the conflict or demonstrate that
Defendant understood he was waiving any potential defenses in
pleading guilty to first degree murder.
¶24 Defendant further added to the confusion when he
interjected that he shot Victim because “[Victim] was drugged
and drunk and [Defendant] didn’t know if [Victim] had a
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weapon.” The court again tried to resolve the conflict, this time
asking Defendant whether he knew that his actions would cause
Victim’s death. Defendant acknowledged that he knew “by
pulling the trigger” of the gun he could cause Victim’s death, but
that acknowledgement did not speak to the conflict created by
his assertions: whether he understood that in pleading guilty to
first degree murder he was conceding that the concept of
imperfect self-defense did not apply.
¶25 Thus, I question whether the ambiguities introduced in
the plea hearing regarding the nature of Defendant’s plea were
resolved by the court’s colloquy. See State v. Lehi, 2003 UT App
212, ¶ 16, 73 P.3d 985 (recognizing the district court’s obligation
to clarify discrepancies during the plea colloquy). However, I
concur in the result and would affirm the district court’s decision
based on Defendant’s failure to demonstrate prejudice.
¶26 Under the Post-Conviction Remedies Act, “[t]he court
may not grant relief from a conviction or sentence unless the
petitioner establishes that there would be a reasonable likelihood
of a more favorable outcome in light of the facts proved in the
post-conviction proceeding, viewed with the evidence and facts
introduced at trial or during sentencing.” Utah Code Ann.
§ 78B-9-104(2) (LexisNexis 2012); see also Gardner v. State, 2010 UT
46, ¶ 62, 234 P.3d 1115. A petitioner must satisfy the same
standard to obtain relief based on a claim of ineffective
assistance of counsel. Landry v. State, 2016 UT App 164, ¶ 23 n.6,
380 P.3d 25.
¶27 On appeal, Defendant relies on the same arguments to
satisfy this standard for his claims based on the voluntariness of
his plea and his claims based on ineffective assistance of counsel.
In addressing Defendant’s challenge based on ineffective
assistance of counsel, we conclude that he failed to demonstrate
that, absent the claimed errors, he would have rejected the
State’s plea offer and that it would have been rational under the
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circumstances to do so. See supra ¶¶ 19–20; see also Rippey v. State,
2014 UT App 240, ¶ 14, 337 P.3d 1071 (requiring a petitioner
challenging the voluntariness of his plea based on ineffective
assistance of counsel to “show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial and that
such a decision would have been rational under the
circumstances” (quotation simplified)). I believe this deficiency
is equally fatal to Defendant’s challenge based on the voluntary
nature of his plea. For the same reasons he fails to demonstrate
prejudice arising out of his ineffective assistance of counsel
claim, he has failed to demonstrate prejudice arising out of his
claim based on the voluntariness of his plea. See supra ¶¶ 19–20.
On this basis, I would affirm the district court’s decision
granting summary judgment to the State on Defendant’s
postconviction challenge to the voluntariness of his plea.
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