Berrett v. State

2018 UT App 55

THE UTAH COURT OF APPEALS

SHERRELL BERRETT,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20160747-CA
Filed April 5, 2018

Second District Court, Farmington Department
The Honorable John R. Morris
No. 150700744

Nathan A. Crane and Dani N. Cepernich, Attorneys
for Appellant
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
RYAN M. HARRIS and DIANA HAGEN concurred.

TOOMEY, Judge:

¶1 After pleading guilty to one count of securities fraud and
one count of sale of an unregistered security, Sherrell Berrett
seeks to withdraw his guilty plea, contending that his counsel
provided him with constitutionally ineffective assistance. As a
condition of Berrett’s plea agreement, the State agreed to
recommend that he be placed on probation if he paid a
significant portion of the restitution by the time of sentencing.
Berrett also waived his right to be sentenced within forty-five
 Berrett v. State

days 1 and was given six months to make payments toward
restitution. Berrett had not made the payments by the sentencing
date. Because he failed to pay the court-ordered restitution, the
State did not recommend probation, and the court sentenced
him to prison. Almost one year after he was sentenced, Berrett
filed a petition under the Post-Conviction Remedies Act (the
PCRA), asserting that he had received ineffective assistance of
counsel. The State filed a motion for summary judgment
contending that (1) Berrett’s petition was procedurally barred
because he did not first move to withdraw his guilty plea, and
(2) even if the claim was not procedurally barred, he did not
demonstrate that he was entitled to post-conviction relief. In
opposition, Berrett disputed the State’s assertions that his
petition was procedurally barred and requested the court
conduct an evidentiary hearing on his claim of ineffective
assistance of counsel. The district court determined that Berrett’s
petition was procedurally barred under the PCRA and granted
the State’s motion for summary judgment; the court did not
address the merits of Berrett’s ineffective assistance of counsel
claim. Berrett appeals the court’s decision.

¶2 We disagree that Berrett’s ineffective assistance of counsel
claim was procedurally barred, but we affirm the district court’s
ruling on the alternative ground that Berrett failed to show that
his counsel’s allegedly deficient performance prejudiced his
defense.

1. See Utah R. Crim. P. 22(a) (“[T]he court shall set a time for
imposing sentence which may be not less than two nor more
than 45 days after the verdict or plea, unless the court, with the
concurrence of the defendant, otherwise orders.”).

20160747-CA 2 2018 UT App 55
 Berrett v. State

BACKGROUND

¶3 In mid-2013, the State charged Berrett, then a seventy-
five-year-old man, with six counts of securities fraud (second
degree felonies); four counts of theft (second degree felonies);
one count of sale of an unregistered security (a third degree
felony); one count of unlicensed investment advisor activity (a
third degree felony); and one count of pattern of unlawful
activity (a second degree felony). 2

¶4 Berrett’s neighbor (Defense Counsel) was an attorney
who assisted Berrett in his interactions with the Utah Division of
Securities during its investigation of Berrett. Two days after the
criminal charges were filed against Berrett, Defense Counsel
entered an appearance to represent him in this case.

¶5 Six weeks after the State filed charges, Defense Counsel
and the State reached a resolution. If Berrett pleaded guilty to
one count of securities fraud and one count of sale of an
unregistered security, and agreed to pay $1,308,364.73 in
complete restitution to the victims, with $600,000 as court-

2. The charges listed are found in the criminal information and
presentence investigation report. These differ from the district
court’s docket and the minutes from the sentence, judgment, and
commitment hearing in the following ways: Counts 2 (theft) and
12 (unlicensed investment advisor activity) list different degrees
for the offenses charged; Count 12 is also listed as unregistered
securities agent instead of unlicensed investment advisor
activity, but both documents list the same statute for the offense;
and Count 3 lists securities fraud instead of theft, a second
degree felony. These discrepancies do not alter our analysis
because the charges to which Berrett ultimately pleaded guilty
are consistent with these documents and the record.

20160747-CA 3 2018 UT App 55
 Berrett v. State

ordered restitution, 3 the State would dismiss the remaining
charges. The State also agreed that if Berrett paid $400,000
toward restitution by the time of sentencing, it would
recommend that he be placed on probation for sixty months; 4
but if not, the State would ask the district court to sentence him
on the felony charges entered, and would reserve the right to
seek either a concurrent or consecutive prison sentence. Based on
that agreement, Berrett pleaded guilty in December 2013.

¶6 At the change-of-plea hearing, Defense Counsel requested
that sentencing be extended six months to allow time for a
presentence investigation report (the PSI report) to be prepared
and to give Berrett an opportunity to start paying restitution

3. Complete restitution is “restitution necessary to compensate a
victim for all losses caused by the defendant.” Utah Code Ann.
§ 77-38a-302(2)(a) (LexisNexis 2017); State v. Mooers, 2017 UT 36,
¶ 9; see also Utah Code Ann. § 77-38a-302(5)(b) (listing some
relevant factors a district court takes into account when
calculating complete restitution). Court-ordered restitution is a
“subset of complete restitution” and is “the restitution the court
. . . orders the defendant to pay as a part of the criminal sentence
at the time of sentencing or within one year after sentencing.”
Mooers, 2017 UT 36, ¶¶ 10–11 (citations and internal quotation
marks omitted); see also Utah Code Ann. § 77-38a-302(2)(b),
(d)(1); id. § 77-38a-302(5)(c) (listing additional factors the court
takes into account when calculating court-ordered restitution);
State v. Brown, 2014 UT 48, ¶ 21, 342 P.3d 239 (stating that “court-
ordered restitution [is] a subset of complete restitution that,
among other things, takes into account the defendant’s
circumstances.” (quotation simplified)).

4. The State also agreed to “a one level reduction of the offenses”
if Berrett paid “the ‘court ordered’ restitution of $600,000 in full
at the time of sentencing.”

20160747-CA 4 2018 UT App 55
 Berrett v. State

before sentencing in accordance with the terms of the plea
agreement. Defense Counsel further explained that Berrett was
going to review his records and determine whether he had
already paid some restitution, and if so, the prosecutor would
give him credit for those payments. After these explanations,
Defense Counsel presented the district court with a plea
statement, with a three-page plea agreement attached, each of
which Berrett, Defense Counsel, and the prosecutor signed.

¶7 The plea statement included: (1) a description of the
charges, supporting facts, and the minimum and maximum
punishment for each charge to which Berrett would be pleading
guilty; (2) an assertion that Berrett had read the statement and
understood the nature and elements of the charges and
discussed them with Defense Counsel; (3) a statement that
Berrett would waive certain constitutional rights by pleading
guilty; 5 (4) an acknowledgement that he could be subject to the
maximum sentence that may be imposed for each crime to which
he was pleading guilty; (5) a disclaimer that the court would not
be bound by any sentencing recommendation from Defense
Counsel or the prosecutor; (6) a certification that Berrett had
read, understood, and voluntarily signed the plea statement and
plea agreement, and that no one made other promises outside of
the plea agreement to him; (7) an acknowledgement that if he
wanted to withdraw his guilty plea, he would have to file a
motion before sentencing; (8) an affirmation that he was
“satisfied with the advice and assistance of [his] attorney”; and
(9) an acknowledgment that any challenge to his guilty plea after
sentencing must be made under the PCRA.

¶8 The plea agreement detailed: (1) the charges to which
Berrett would plead guilty; (2) the amount of complete and

5. Specifically, Berrett waived his right to a jury trial; his rights to
compel, confront, and cross-examine witnesses; his right to
testify; and his right to a direct appeal of his conviction.

20160747-CA 5 2018 UT App 55
 Berrett v. State

court-ordered restitution; (3) a stipulation postponing sentencing
for six months to allow Berrett time to collect and make
payments toward the court-ordered restitution; (4) an agreement
that if Berrett “[paid] $400,000 toward his court-ordered
restitution . . . on or before sentencing, the State [would]
recommend that [he] be placed on probation for a period of sixty
(60) months”; and (5) a statement on the third page, directly
above Berrett’s signature, that if Berrett was “unable to pay the
$400,000 toward the ‘court-ordered’ restitution at the time of
sentencing, the State [would] ask the Court to sentence [Berrett]
on the felony charges as entered, and [it] may seek a concurrent
or consecutive prison sentence.”

¶9 Before the district court accepted Berrett’s guilty plea, it
engaged in a colloquy with him about the plea statement and
plea agreement he had signed. The court specifically asked
whether he was prepared to plead as indicated; whether he was
doing so freely and voluntarily; whether he read and understood
the plea statement; whether his questions had been answered;
and whether what Defense Counsel put on the record was
consistent with his understanding. Berrett gave an unequivocal
affirmative reply to each of these questions. The court found the
factual recitation sufficient and accepted Berrett’s guilty plea.

¶10 During the six months following the change-of-plea
hearing, Berrett did not move to withdraw his guilty plea, nor
did he make any payments toward restitution. Adult Probation
and Parole prepared and submitted a PSI report to the court for
the sentencing hearing.

¶11 The PSI report included, among other things, a sentencing
recommendation to the district court; sentencing guidelines
based on Berrett’s lack of criminal history and the category of the
offenses to which he pleaded guilty; and the investigator’s
recommendation. The recommendation in the report adopted
the terms of the plea agreement entered between Berrett and the
State, and it included some additional terms and conditions.

20160747-CA 6 2018 UT App 55
 Berrett v. State

Given Berrett’s lack of criminal history and the category of his
crimes, the guidelines suggested he serve 180 days in the county
jail (ninety days for each offense) and then be placed on
probation. Finally, the investigator commented that “Berrett
reported he has tried, without success, to raise $400,000 to pay
toward restitution as he had hoped.”

¶12 At the sentencing hearing, 6 Berrett told the court that he
had tried to make restitution payments but was unable to do so.
Defense Counsel explained that he and Berrett had spent many
hours attempting to provide an evidentiary foundation for cases
pending against people Berrett had entrusted with his investors’
funds in an attempt to recoup the lost money. Defense Counsel
argued Berrett should not be sent to prison. Consistent with the
plea agreement, the State recommended that the court sentence
Berrett to prison because he had not made any payments toward
restitution. The district court sentenced Berrett to one-to-fifteen
years in prison for securities fraud and zero-to-five years in
prison for the sale of an unregistered security, and it ordered the
sentences to run concurrently.

¶13 Berrett filed his PCRA petition in the district court in July
2015. He contended that Defense Counsel provided ineffective
assistance that resulted in the entry of a guilty plea that was not
knowing and voluntary. Berrett first argued that Defense
Counsel was ineffective for not subjecting the State’s case to
meaningful adversarial testing. Second, Berrett argued that
Defense Counsel did not investigate the case or interview
witnesses. Third, Berrett argued that Defense Counsel
misrepresented to him that he would be sentenced to probation

6. A transcript from the sentencing hearing was not provided to
this court and is therefore not part of the record on appeal. For
purposes of describing the events and statements made at the
sentencing hearing, we recite only the facts Berrett admitted to in
his opposition to the motion for summary judgment.

20160747-CA 7 2018 UT App 55
 Berrett v. State

instead of a prison term. Fourth, Berrett argued that Defense
Counsel negotiated a plea agreement Berrett was incapable of
keeping. 7

¶14 In response to Berrett’s petition, the State filed a motion
for summary judgment contending that (1) Berrett’s ineffective
assistance of counsel claim was procedurally barred under
Brown v. State, 2015 UT App 254, 361 P.3d 124, because he did
not timely move to withdraw his plea before filing his petition,
and (2) Berrett’s claim failed on the merits because Berrett could
not “show that counsel’s performance was deficient” and that
the “deficient performance prejudiced the defense.” (Quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984).)

¶15 Berrett opposed the motion arguing that his ineffective
assistance of counsel claim was not procedurally barred, because
Brown did not hold that a failure to first move to withdraw a
guilty plea bars a defendant from all challenges to a guilty plea.
In addition, Berrett asserted that there was a question of fact as
to whether Defense Counsel performed deficiently.
Consequently, Berrett requested an evidentiary hearing to allow
him to “present additional evidence” regarding Defense
Counsel’s representation.

7. Berrett made an allegation of ineffective assistance of counsel
regarding the PSI report but conceded in his opposition to the
motion for summary judgment that his claim was procedurally
barred because he could have raised it in a direct appeal. Cf.
Snyder v. State, 2015 UT App 37, ¶ 6, 346 P.3d 669 (holding that
challenging a PSI could have been raised on direct appeal and is
therefore barred in a subsequent PCRA claim); see also Utah
Code Ann. § 78B-9-106(1)(c) (LexisNexis Supp. 2017) (barring a
defendant’s ability to seek relief under the PCRA “upon any
ground that . . . could have been but was not raised at trial or on
appeal”).

20160747-CA 8 2018 UT App 55
 Berrett v. State

¶16 The district court granted the State’s motion for summary
judgment concluding that Berrett’s claim was procedurally
barred under the PCRA because it was “founded on facts that
were known or should have been known to [Berrett] prior to
sentencing and were not subsequently raised on appeal.” The
court did not address the State’s alternative argument that
Berrett’s ineffective assistance of counsel claim failed as a matter
of law. Berrett appeals.

ISSUE AND STANDARDS OF REVIEW

¶17 Berrett raises one issue on appeal: does Brown v. State,
2015 UT App 254, 361 P.3d 124 bar his ineffective assistance of
counsel claim? “We review an appeal from an order dismissing
or denying a petition for post-conviction relief for correctness
without deference to the [district] court’s conclusions of law.”
Taylor v. State, 2012 UT 5, ¶ 8, 270 P.3d 471 (citation and internal
quotation marks omitted).

¶18 The State contends that if Berrett’s ineffective assistance of
counsel claim is not barred, then this court can still affirm the
district court’s grant of its summary judgment on the alternate
ground that he failed to show he received ineffective assistance
of counsel. A district court shall grant a motion for summary
judgment “if the moving party shows that there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.” Utah R. Civ. P. 56(a). “[W]e
review a district court’s summary judgment ruling for
correctness.” Id. A review for correctness means that we “accord
no deference to [to the district court’s] conclusions of law.”
Dillon v. Southern Mgmt. Corp. Ret. Trust, 2014 UT 14, ¶ 21, 326
P.3d 656 (quotation simplified). And “we may affirm the result
reached by the [district] court if it is sustainable on any legal
ground or theory apparent on the record, even though that
ground or theory was not identified by the [district] court as the

20160747-CA 9 2018 UT App 55
 Berrett v. State

basis of its ruling.” Id. (citation and internal quotation marks
omitted).

ANALYSIS

I. Berrett is Not Procedurally Barred from Bringing His
Ineffective Assistance of Counsel Claim

¶19 “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 certain grounds.” Johnson v. State,
2011 UT 59, ¶ 10, 267 P.3d 880 (omission in original) (citation
omitted). The “petitioner is entitled to relief only if the petition is
filed within one year after the cause of action has accrued.” Utah
Code Ann. § 78B-9-107(1) (LexisNexis Supp. 2017).

¶20 Berrett contends that a criminal defendant need not move
to withdraw a guilty plea before pursuing a claim challenging
that plea under the PCRA on the basis of having received
ineffective assistance of counsel. The State argues Berrett could
have brought his ineffective assistance of counsel claim in a
timely plea-withdrawal motion because none of Berrett’s
allegations asserted new or newly discovered evidence; instead
they rested entirely on facts Berrett knew or should have known
at the time of his plea. Further, the State asserts that Berrett
should have withdrawn his plea before sentencing and shown
that it was “not knowingly and voluntarily made.” See Utah
Code Ann. § 77-13-6(2)(a)–(b) (LexisNexis 2017).

¶21 In support of its arguments, the State relies on Brown v.
State, 2015 UT App 254, 361 P.3d 124. Like Berrett, Brown
pleaded guilty, “did not seek to withdraw his guilty pleas at any
time before sentencing, and he did not file a direct appeal.” Id.
¶ 2. This court held that Brown’s PCRA petition was barred

20160747-CA 10 2018 UT App 55
 Berrett v. State

because “it was not raised at trial or on direct appeal.” Id. ¶ 22.
The State misunderstands Brown.

¶22 Nearly three years after the district court sentenced
Brown he moved for relief under the PCRA asserting an
ineffective assistance of counsel claim. Id. ¶ 4. He argued that his
attorney gave him “incorrect advice about the consequences of
pleading guilty” and that his attorney “operated under several
conflicts of interest when he urged [Brown] to plead guilty.” Id.
He also argued that his plea was not knowingly and voluntarily
made, because he was taking prescription pain medicine at the
time the plea was entered. Id. “The district court found that all of
the pertinent facts supporting [Brown’s] ineffective assistance
claims were known to [Brown] before he entered his pleas and
that more than one year had passed before [Brown] filed his
PCRA petition.” Id. Brown appealed. Id. ¶ 5.

¶23 On appeal, this court held that Brown “was aware, or
should have been aware, of all of the principal facts supporting
his various claims by the time he was sentenced.” Id. ¶ 18. In a
footnote, this court mentioned the date of his sentencing, his
time limitation to directly appeal, and that he had one year from
his sentencing date to “file a timely PCRA petition.” Id. ¶ 4 n.1.
And this court concluded that Brown’s petition “was untimely
under the PCRA,” id. ¶ 18, which required that a petition be filed
“within one year after the cause of action has accrued,” id. ¶ 7
(quoting Utah Code Ann. § 78B-9-107(1) (LexisNexis Supp.
2017)). 8

8. When there is no difference between the current version of a
statutory provision and the one relied on at the time of a prior
decision, we generally cite to “the current version of the Utah
Code Annotated as a convenience to the reader.” See Brown v.
State, 2015 UT App 254, ¶ 7 n.2, 361 P.3d 124.

20160747-CA 11 2018 UT App 55
 Berrett v. State

¶24 Brown’s PCRA petition contained both an ineffective
assistance of counsel claim and other challenges to the validity of
his guilty plea. See id. ¶¶ 4, 6, 11. As it relates to his ineffective
assistance of counsel claim, this court’s conclusion was reached
on the basis that Brown “was aware, or should have been aware,
of all of the principal facts supporting his various claims by the
time he was sentenced.” Id. ¶ 18. From the date he was
sentenced, this court calculated the date by which Brown should
have filed a PCRA petition with respect to his ineffective
assistance of counsel claim. Id. ¶ 4 n.1. Because Brown knew of
all of the facts relative to his claims more than one year prior to
its filing, those claims were barred by the PCRA’s one-year
statute of limitations. Id. ¶ 18. This court then analyzed Brown’s
challenges to the “validity of his guilty pleas,” id. ¶ 21, and held
that those challenges could have been brought at trial or on
direct appeal and were therefore barred by the PCRA’s provision
that “precludes relief for any claim that could have been but was
not raised at trial or on appeal,” id. ¶ 22; see Utah Code Ann.
§ 78B-9-106(1)(c) (providing that “[a] person is not eligible for
relief under [the PCRA] upon any ground that . . . could have
been but was not raised at trial or on appeal”). This court did not
address whether the one-year PCRA statute of limitations for
Brown’s ineffective assistance of counsel claim commenced prior
to sentencing. He submitted his petition without newly
discovered evidence well beyond the time permitted under the
PCRA, so there was no need to address that issue. See Brown,
2015 UT App 254, ¶¶ 16, 18. More importantly, this court did not
state that an ineffective assistance of counsel claim cannot be
brought if a defendant has not first withdrawn a guilty plea.

¶25 The State is correct that claims relating to ineffective
assistance of counsel may be procedurally barred under the
PCRA. “For instance, no post-conviction relief is available for a
claim that ‘was raised or addressed at trial or on appeal’ or that
‘could have been but was not raised at trial or on appeal.’”
Johnson v. State, 2011 UT 59, ¶ 10, 267 P.3d 880 (citation omitted).

20160747-CA 12 2018 UT App 55
 Berrett v. State

But there are exceptions to that rule—for example, post-
conviction relief is available for ineffective assistance of counsel
when “the same counsel represented the petitioner at trial and
on direct appeal.” Id. ¶ 11. This is so because “it is unreasonable
to expect an attorney to raise the issue of his own
incompetence.” Archuleta v. Galetka, 2011 UT 73, ¶ 22, 267 P.3d
232 (quotation simplified).

¶26 Berrett had Defense Counsel from the beginning of the
case through his sentencing hearing, and it is therefore
unreasonable to expect Berrett to have Defense Counsel file a
claim for ineffective assistance of counsel against himself. We are
also unaware of any procedural bar that requires a petitioner to
first move to withdraw his guilty plea before challenging the
validity of the plea based on ineffective assistance of counsel. 9
Indeed, the Utah Supreme Court has reiterated that when a
defendant fails to withdraw a guilty plea before sentencing, the
defendant has “waived [the] right to a direct appeal,” and any
claims a defendant may have “with respect to ineffective
assistance of counsel or whether his plea was knowingly and
voluntarily made can be pursued under the PCRA.” State v.
Allgier, 2017 UT 84, ¶ 27; see also Nicholls v. State, 2009 UT 12,
¶¶ 8, 14, 203 P.3d 976 (reaching the merits of a defendant’s
challenges to his guilty plea based on ineffective assistance of
counsel under the PCRA because he failed to withdraw his

9. Under Utah statutory law, most challenges to the validity of
the guilty plea not based on ineffective assistance of counsel
must be brought in a motion to withdraw the guilty plea prior to
sentencing. See Utah Code Ann. § 77-13-6(2)(a) (LexisNexis
2017).

20160747-CA 13 2018 UT App 55
 Berrett v. State

guilty plea prior to sentencing). Therefore, Berrett’s ineffective
assistance of counsel claim was not procedurally barred.10

II. We Affirm the District Court’s Grant of the State’s Motion for
Summary Judgment on Alternative Grounds

¶27 The State contends that even if Berrett’s claims were not
procedurally barred, “summary judgment was still proper”
because Berrett cannot satisfy Strickland’s two-prong test for
ineffective assistance of counsel and this court can “still affirm
on any legal ground or theory apparent on the record.” “[W]e
may affirm a [district] court’s judgment on an alternative
ground, but only if the alternative ground is ‘apparent on the
record.’” State v. Henderson, 2007 UT App 125, ¶ 15, 159 P.3d 397
(quoting State v. Topanotes, 2003 UT 30, ¶ 9, 76 P.3d 1159). After a
thorough review of the record, we are persuaded that we may
affirm the district court’s grant of summary judgment on the
alternative ground that Berrett cannot satisfy Strickland’s two-
prong test.11

10. The plea statement included a waiver of Berrett’s right to
directly appeal his conviction and informed him that “any
challenge to [Berrett’s] plea(s) made after sentencing must be
pursued under the [PCRA].”

11. Last year, the United States Supreme Court issued Lee v.
United States, 137 S. Ct. 1958 (2017), which clarified what a
defendant must show to demonstrate that his counsel’s deficient
performance deprived him of a trial by causing him to accept a
plea. Id. at 1965. A defendant may show prejudice by
demonstrating a “reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have
insisted on going to trial.” Id. (citation and internal quotation
marks omitted). A defendant must still show that he would have
been better off going to trial “when the defendant’s decision
(continued…)

20160747-CA 14 2018 UT App 55
 Berrett v. State

¶28 A court must “grant summary judgment if the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.” Utah R. Civ. P. 56(a). “Once the [moving party] makes that
showing, the burden of proof then shifts to the nonmoving
party.” Menzies v. State, 2014 UT 40, ¶ 81, 344 P.3d 581. And if the
nonmoving party “bears the burden of proving ineffective
assistance, he cannot rest on his allegations alone” and instead
“must set forth specific facts showing that there is a genuine
issue for trial.” Id. (quotation simplified). “[W]here there could
be no reasonable difference of opinion on a question of fact in
light of the available evidence, the decision is [then] one of law
for the [district court] or for an appellate court.” iDrive Logistics
LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 43 (citation and
internal quotation marks omitted). “We view the facts and all
reasonable inferences drawn therefrom in the light most

(…continued)
about going to trial turns on his prospects of success and those
are affected by the attorney’s error.” The Court stated that
“[c]ourts should not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded
but for his attorney’s deficiencies. Judges should instead look to
contemporaneous evidence to substantiate a defendant’s
expressed preferences.” Id. at 1967.
Here, Berrett has only made a post hoc assertion that,
because of his age, “had he known that he faced a one to fifteen
year sentence under the plea, he would not have pleaded guilty
but proceeded to trial.” Berrett, however, failed to show
contemporaneous evidence to substantiate his alleged
preference. As such, Berrett must still show that he would have
been better off going to trial and “convince [us] that a decision to
reject the plea bargain would have been rational under the
circumstances.” State v. Walker, 2013 UT App 198, ¶ 42, 308 P.3d
573 (citation and internal quotation marks omitted).

20160747-CA 15 2018 UT App 55
 Berrett v. State

favorable to the nonmoving party.” Id. (internal quotation marks
omitted) (quoting Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600).

¶29 To show that Berrett’s counsel was so defective that it
violated his Sixth Amendment right to counsel and requires
reversal, he must “show that counsel’s performance was
deficient” and that the “deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
Unless Berrett makes a showing of both elements, he cannot
succeed on his claim. See id.

¶30 Here, the State met its initial burden by showing that
there is no genuine dispute as to any material fact, and it is
entitled to summary judgment as a matter of law. The State and
Berrett do not dispute that Berrett signed the plea statement and
plea agreement; that the agreement to pay restitution for a
recommendation for probation was a part of the plea agreement;
and that Berrett certified to the court during his change-of-plea
hearing that he had read and understood the plea statement. The
State argues that “Berrett’s claims [of ineffective assistance of
counsel] are all either speculative or contradicted by the
undisputed facts from the criminal case.” It further argues that
“[f]or several of his claims, Berrett merely alleged without
proffering admissible evidence that ‘to his knowledge’ counsel
performed deficiently.” And regarding the remainder of
Berrett’s claims, “his supporting averments were controverted
by his express acknowledgments in his plea statement, to the
[district] court at the plea hearing, and in other documents filed
in the case.” For all these reasons, the State contends Berrett
failed to “show that counsel’s performance was deficient” and
the “deficient performance prejudiced the defense.” (Quoting
Strickland, 466 U.S. at 687.)

¶31 Because the State met its initial burden, Berrett must set
forth specific facts showing that there is a genuine issue for trial
to survive summary judgment. See Menzies, 2014 UT 40, ¶ 81.
Berrett attempts to do this in several ways. First, Berrett counters

20160747-CA 16 2018 UT App 55
 Berrett v. State

that many of the “acknowledgments” the State relies on do not
actually contradict Berrett’s sworn testimony, and even if they
do, the State is not entitled to summary judgment because the
United States Supreme Court has recognized “that where a
petitioner provides specific factual allegations calling into
question representations in a plea or sentencing record, that
record ‘is not invariably insurmountable.’” (Quoting Blackledge v.
Allison, 431 U.S. 63, 74 (1977).) Berrett also asserts that “an
affidavit, as a matter of law, cannot contradict a prior sworn
statement . . . which was clear and unequivocal, unless the
affidavit states an adequate reason for the contradiction.”
(Quoting Fowler v. Mark McDougal & Assocs., 2015 UT App 194,
357 P.3d 5 (quotation simplified).) Here, Berrett argues that he
“provided an adequate reason—that he believed and was
operating under the advice of counsel, who he later discovered
had made affirmative misrepresentations about what . . . Berrett
was signing.”

¶32 Second, Berrett argues that Defense Counsel’s
performance was deficient because counsel: failed to investigate
the case, promised that Berrett would be sentenced to probation
with no jail or prison time, and accepted a plea agreement on
behalf of Berrett 12 under which Berrett agreed to pay $400,000 in
restitution in the six months before the sentencing hearing when
Berrett had no ability to do so.

¶33 Third, Berrett argues he sufficiently identified the
prejudice he suffered. He argues he has shown “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 decision would have been rational under the
circumstances.” (Quoting Ramirez-Gil v. State, 2014 UT App 122,
¶ 8, 327 P.3d 1228 (quotation simplified).) Berrett was seventy-

12. This is Berrett’s characterization. To be clear, Berrett was the
one who accepted the plea agreement and not his counsel.

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 Berrett v. State

five when he entered the plea and asserts that “had he known
that he faced a one to fifteen year sentence under the plea, he
would not have [pleaded] guilty but proceeded to trial.” And he
has “acknowledge[d] that proceeding to trial would have
exposed him to thirteen felony charges and a minimum sentence
of eleven years,” but he points out that the difference between a
one to fifteen year sentence “and a potential minimum sentence
of eleven years is insignificant given Berrett’s advanced age,”
where either period of incarceration is “likely to constitute a life
sentence.”

¶34 Assuming Defense Counsel’s conduct was deficient,
Berrett has not demonstrated counsel’s deficient performance
prejudiced him. See State v. Vu, 2017 UT App 179, ¶ 17, 405 P.3d
879 (explaining that “even assuming [counsel’s conduct] was
deficient . . . Vu [had] not demonstrated that this deficient
performance prejudiced him”). The plea agreement advised
Berrett in writing that he was facing prison time and that the
State would recommend a prison sentence if he failed to pay the
$400,000 in restitution before sentencing. He certified in writing
his understanding by signing the plea statement and orally
confirmed to the court that he had read and understood it. Even
if Defense Counsel “misrepresented” that Berrett would receive
only probation, Berrett knew, or should have known, that he
could receive a prison sentence, and that it was the court and not
the State that would make that determination.

¶35 Finally, Berrett’s affidavit cannot contradict his in-court
responses to the district court’s colloquy unless he provides an
adequate reason for the contradiction. See Fowler, 2015 UT App
194, ¶¶ 6–7. Here, he did not do that. Berrett provided no
adequate reason in his affidavit for his attempt to revoke his
certification to the court that he had read and understood the
plea agreement at the time he entered his plea. Instead, Berrett
again admitted that he signed the plea agreement at the change-

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 Berrett v. State

of-plea hearing. 13 And his only purported explanation for
claiming that this certification was not knowing was because
Defense Counsel did not review the agreement with him. But at
the hearing, the court asked, “You’ve discussed this with
[Defense Counsel]?” and Berrett responded, “Yes, Your Honor.”

¶36 We conclude that Berrett was aware of the risk he could
be sentenced to the maximum sentences for the convicted
offenses based on the plea statement and plea agreement. He
knew the court had discretion to sentence him to probation or
prison. Berrett failed to demonstrate it would have been rational
to insist on going to trial as opposed to accepting a plea deal. He
also failed to demonstrate that entering into the plea agreement
was not knowing and voluntary. Therefore, Berrett failed to
show any material facts that Defense Counsel’s conduct
prejudiced him; he read and signed the plea agreement, certified
to the court that he understood what was in it and understood
that the district court could sentence him to prison, as it
ultimately did.

13. Berrett’s affidavit also stated, “The sentencing hearing was
the first time I had learned that I had agreed to make the
payment of $400,000 in restitution on or before [the] date [of
sentencing].” But Defense Counsel discussed restitution, if not
the exact amount, during the change-of-plea hearing and
attempted to clarify on the record that “on paragraph 3 of page
13” of the plea agreement the total amount of restitution and
court ordered restitution should not be added together. After
this discussion on the record, Berrett confirmed to the court that
counsel had discussed the agreement with him, that he had no
further questions, and that he had read and signed the
agreement. He has therefore failed to articulate a reason for the
contradiction between his certification to the court and his
affidavit. See Fowler v. Mark McDougal & Assocs., 2015 UT App
194, ¶¶ 6–7, 357 P.3d 5.

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 Berrett v. State

CONCLUSION

¶37 The district court erred in determining that Berrett’s
ineffective assistance of counsel claim raised in his PCRA
petition was procedurally barred because the PCRA is the only
remedy for defendants who have not withdrawn their guilty
pleas to challenge their pleas on the basis of ineffective
assistance of counsel. But based on the record before us, we
affirm on alternative grounds the court’s decision to grant the
State’s motion for summary judgment. We conclude there is no
genuine dispute as to any material fact because Berrett did not
support his ineffective assistance of counsel claim with evidence
that he was prejudiced by counsel’s performance. Berrett has
further failed to show that he is entitled to post-conviction relief
as a matter of law.

20160747-CA 20 2018 UT App 55