State v. Archuleta

2019 UT App 136

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ISAK JO TATSU ARCHULETA,
Appellant.

Opinion
No. 20180170-CA
Filed August 8, 2019

Second District Court, Ogden Department
The Honorable W. Brent West
The Honorable Jennifer L. Valencia
No. 161901927

Randall W. Richards, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 Isak Jo Tatsu Archuleta pled guilty to burglary and
aggravated assault. Later, on the day scheduled for his
sentencing, Archuleta attempted to withdraw his plea, but the
district court refused to allow him to do so. Archuleta now
appeals that decision, and in addition he claims that his attorney
provided ineffective assistance. We reject Archuleta’s arguments
and affirm his convictions.
 State v. Archuleta

BACKGROUND

¶2 On June 5, 2016, 1 two men and a woman—armed with
handguns—knocked on the door of a residence. When someone
opened the door, the three individuals forced their way inside
and held seven adults at gunpoint. The female intruder ordered
an adult woman upstairs and stole approximately $400 in cash
and a half-ounce of methamphetamine from her. When this
woke three children sleeping upstairs, the female intruder
ordered the children back into their room at gunpoint.

¶3 Meanwhile, the two male intruders stole cell phones, a
computer, and a backpack from the other adults. One of the
males—who the State believed was Archuleta—ordered one
adult to electronically transfer money into his bank account, but
when the individual could not do so, the male intruder punched
and then repeatedly kicked him in the face. The two male
intruders also assaulted two others, punching, kicking, and
striking them in the face with their handguns.

¶4 While the two male intruders wore bandannas over their
faces to conceal their identities, the female intruder did not, and
she was recognized and identified as Deana Smith by five of the
adult victims. When Smith was arrested two months after the
incident, she identified Archuleta and Justin Martinez as the two
male intruders.

¶5 Based on Smith’s identification of him, Archuleta was
later arrested and charged with two first-degree felonies

1. Because no trial was ever held in this case, and because
Archuleta did not admit any facts, we draw our description of
the events of the June 5 incident from the State’s probable cause
statement and from the State’s description, at the plea hearing, of
the evidence it intended to present at trial. It bears noting that
the facts as described here have never been proved or admitted.

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 State v. Archuleta

(aggravated burglary and aggravated robbery) and three second-
degree felonies (possession of a firearm by a restricted person
and two counts of aggravated assault). After relatively lengthy
pretrial proceedings during which the State proved unable to
locate anyone other than Smith who could place Archuleta at the
crime scene, the State offered to dismiss the remaining charges if
Archuleta would agree to plead guilty to one second-degree
felony (an amended charge of burglary) and one third-degree
felony (an amended charge of aggravated assault). The State also
offered to allow Archuleta to enter an Alford plea 2 in which he
would stop short of admitting guilt, and in addition pledged to
recommend to the sentencing judge that Archuleta be placed on
probation rather than sent to prison.

¶6 Archuleta agreed to take the deal, and appeared in court
on November 15, 2017 to enter his plea. At the outset of the
proceedings, after being apprised of the outlines of the proposed
plea, the district court—personified at the time by Judge West—
inquired as to why the State was recommending probation for

2. An Alford plea is a type of guilty plea in which
“a defendant does not expressly admit his guilt,
but nonetheless waives his right to a trial and
authorizes the court for purposes of the case to
treat him as if he were guilty.” These pleas allow
courts to impose “a prison sentence upon an
accused who is unwilling expressly to admit his
guilt but who, faced with grim alternatives, is
willing to waive his trial and accept the sentence.”
State v. Gardner, 2018 UT App 126, ¶ 9 n.5, 428 P.3d 58 (quoting
North Carolina v. Alford, 400 U.S. 25, 35–36 (1970)); see also State v.
Ott, 2010 UT 1, ¶ 9 n.2, 247 P.3d 344 (stating that, “[b]y entering
an Alford plea, a defendant does not admit guilt” but instead
“enters a guilty plea because he recognizes that a prosecutor has
enough evidence to obtain a guilty verdict”).

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 State v. Archuleta

Archuleta after it had, in a companion case, previously
recommended a prison sentence for Martinez. In response, the
prosecutor acknowledged that “the evidence is a little different”
in the two cases and that the evidence against Archuleta was not
as strong as the evidence against Martinez.

¶7 Archuleta then proceeded to plead guilty in accordance
with the agreement. First, his attorney explained to the district
court that Archuleta maintained his innocence and was entering
Alford pleas for the two amended charges. When the court
inquired about the factual basis for the plea, the prosecutor
proffered that Archuleta, along with the co-defendants, “entered
the victim’s residence” while “armed with weapons” and “stole
some money,” and in so doing he used weapons to inflict serious
bodily injury upon the victim. Archuleta did not admit that these
facts occurred; instead, his attorney noted that Archuleta agreed
that these were “the facts that the State can prove,” or at least
that “they [think] they can prove.”

¶8 The district court also conducted a plea colloquy, in
which it explained that the charges to which Archuleta was
pleading guilty carried the possibility of prison, but commented
that “that’s a heck of a lot better than all the charges that
[Archuleta was] facing before [he] entered into this plea
agreement.” The court also asked Archuleta whether the plea
was “a voluntary plea,” and Archuleta answered in the
affirmative. The court asked Archuleta if he was “doing this of
[his] own free will,” and Archuleta said he was. In addition, the
court engaged in the following colloquy with Archuleta:

Q: Are you under the influence of any alcohol
or drugs, receiving any kind of medical
treatment, taking any kind of prescriptive
medications, suffering from any kind of
mental illness? You’re thinking clearly?

A: Yes.

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 State v. Archuleta

¶9 The court also asked Archuleta if he had read and
understood the written plea agreement form, and Archuleta
answered in the affirmative. In that form, Archuleta certified
that he “was not under the influence of any drugs, medication,
or intoxicants which would impair [his] judgment when [he]
decided to plead guilty,” and that he was “not presently under
the influence of any drug, medication, or intoxicants which
impair [his] judgment.” His attorney also certified that Archuleta
“fully understands the meaning of [the] contents” of the form,
“and is mentally and physically competent.” In addition,
Archuleta certified that he understood that the sentencing judge
was not bound by the terms of any sentencing recommendation
made by the parties. After accepting Archuleta’s guilty pleas, the
district court set sentencing for December 27, 2017.

¶10 In late December, a few days before the scheduled
sentencing hearing, Adult Probation and Parole (AP&P) issued a
presentence investigation report for Archuleta, setting forth its
recommendation that Archuleta be sentenced to prison. At the
outset of the December 27 sentencing hearing, Judge West
informed Archuleta that he was not inclined to follow the State’s
recommendation of probation, but was instead inclined to follow
AP&P’s prison recommendation. Hearing that statement, and
perhaps aware that Judge West was scheduled to retire at the
end of the year, Archuleta’s counsel asked the court for a
continuance so that he could “brief a couple of issues regarding
sentencing.” Judge West granted that request, and rescheduled
Archuleta’s sentencing for January 24, 2018.

¶11 In the meantime, Archuleta had been writing letters to the
court in which he asserted various grievances. Among other
things, Archuleta accused the prosecution of being unfair,
described his co-defendant as unworthy of the bail he received,
requested a speedy trial, asked to be let out of jail because his
father was sick, took issue with AP&P’s recommendations,
asked to withdraw his plea, and maintained his innocence. In

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 State v. Archuleta

these letters, Archuleta did not mention being intoxicated or
under the influence at the plea hearing.

¶12 Upon Judge West’s retirement, Archuleta’s case was
reassigned to Judge Valencia. At the January 24 hearing, Judge
Valencia remarked that she too would be inclined to follow
AP&P’s sentencing recommendation, and Archuleta again
sought and received a continuance.

¶13 At the beginning of Archuleta’s third sentencing hearing,
on February 7, 2018, Archuleta’s attorney informed the court that
Archuleta “does wish to withdraw his plea,” but that counsel
was “not able to find any grounds for that at this time.” The
attorney explained that Archuleta had “recently come across
another inmate who has admitted to . . . [Archuleta’s] portion of
the crime in jail” and stated that he knew that inmate’s identity,
and asked the court for a continuance to allow prosecutors to
investigate the individual. The State opposed the continuance,
arguing that there were no grounds to withdraw the plea at this
point, that Archuleta had always maintained his innocence, and
that he had provided other names of possible suspects to the
State in the past and none of those leads had panned out.

¶14 As the court began to explain that it did not see a basis for
withdrawing the plea, Archuleta interrupted, explaining that
about a week after entering his plea, he “told [his] lawyer that
[he] was under the influence when [he] took the plea and . . . that
there was proof [of] that in the jail,” and that when he entered
his plea, he “was in such a dream state that . . . [he] thought [he]
was asleep.” After listening to Archuleta’s explanations about
why he believed he should be able to withdraw his plea, which
included a renewed claim of innocence and reiteration that he
met someone in jail who admitted to the crime, the court
informed Archuleta that “[t]here isn’t [a] sufficient basis that’s
been presented as to why that plea should be withdrawn at this
time.” The court observed that “[t]here have been a number of

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 State v. Archuleta

continuances in this case” but that it had not received any
briefing on the issues raised by Archuleta. The court also noted
that it did not find Archuleta’s statements regarding his level of
intoxication credible, because his plea was entered in open court,
before Judge West and counsel, and because he had been
incarcerated for more than a year at the time of his plea and
therefore presumably would not have had ready access to
substances that would render him “under the influence.”

¶15 All the while, Archuleta continued to interrupt the court,
attempting to argue his case, until the court asked his attorney
for argument regarding Archuleta’s sentence. Archuleta’s
attorney first acknowledged the arguments that Archuleta had
made himself, stating as follows:

[T]he issues [Archuleta] brings up are valid issues,
but the issues themselves are ones that have to be
brought up, frankly, post-sentencing. And I’ll make
sure they’re brought up, and make sure his
appellate case is turned over to the public defender
to be filed. As far as the case itself, he does
maintain that he did not do it.

Archuleta’s attorney then argued for probation, pointing out that
Archuleta had been in jail for “over a year and a half” and that
he had been accepted into a drug treatment program in Salt
Lake. After hearing from the prosecutor—who still
recommended probation per the terms of the plea agreement—
the court sentenced Archuleta to prison. 3

3. On February 10, 2018, three days after his sentencing,
Archuleta obtained a notarized but unsworn statement from a
witness who claimed that he had been peripherally involved in
the burglary on June 5, 2016, and that the three other individuals
involved—the ones who actually went into the house—were
(continued…)

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 State v. Archuleta

ISSUES AND STANDARDS OF REVIEW

¶16 Archuleta now appeals his sentence, and asks us to
address two issues. First, he argues that the district court erred
by denying his oral motion to withdraw his guilty plea. We
review a district court’s ruling on a motion to withdraw a guilty
plea for abuse of discretion. State v. Ciccolelli, 2019 UT App 102,
¶ 9. And “we will disturb the court’s underlying findings of fact
only if they are clearly erroneous.” Id. (quotation simplified).

¶17 Second, Archuleta argues that his attorney was
ineffective. “An ineffective assistance of counsel claim raised for
the first time on appeal presents a question of law.” State v. Ott,
2010 UT 1, ¶ 16, 247 P.3d 344 (quotation simplified). In such a
situation, “there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified).

(…continued)
“Deana Bailey,” a “Mexican” called “Jaybird,” and a “white
male” called “Sam.” Archuleta made no attempt to bring this
statement to the attention of the district court, but later filed it
with this court in connection with a motion for remand, filed
pursuant to rule 23B of the Utah Rules of Appellate Procedure.
That motion was also accompanied by a copy of a document,
purporting to be a notice of discipline from the Weber County
Jail, reprimanding Archuleta for being in possession of a
“syringe and needle” in his jail cell on December 1, 2017, some
two weeks after his plea hearing. We previously denied
Archuleta’s rule 23B motion, and therefore neither the witness
statement nor the jail write-up was ever made part of the record.
In aid of a complete narrative, in this opinion we sometimes
refer to the witness statement or the jail write-up in footnotes, by
way of explaining why we denied the rule 23B motion.

20180170-CA 8 2019 UT App 136
 State v. Archuleta

ANALYSIS

I

¶18 Archuleta first argues that the district court erred by
denying his motion—made orally at his sentencing hearing—to
withdraw his guilty plea, asserting that the court “did not . . .
investigate whether or not [he] was under the influence of illegal
drugs . . . around the time of the entry of the plea.” Archuleta
insists that, after he raised the issue at the sentencing hearing,
the district court was obligated to conduct an inquiry into his
alleged intoxication at the plea hearing, and that the lack of a
detailed inquiry is grounds for reversal. We disagree.

¶19 Under Utah law, a defendant may not withdraw a guilty
plea unless the plea was “not knowingly and voluntarily made.”
Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017); see also State v.
Ruiz, 2012 UT 29, ¶ 32, 282 P.3d 998 (stating that, in light of
amendments to Utah Code section 77-13-6, “judges may now
grant a motion to withdraw only when they determine that a
defendant’s plea was not knowingly and voluntarily entered”);
cf. State v. Alexander, 2012 UT 27, ¶ 16, 279 P.3d 371 (stating that a
guilty plea is “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” (quotation simplified)).
The burden of making this showing rests with the defendant
seeking to withdraw his plea. See Alexander, 2012 UT 27, ¶ 27
(stating that “the Plea Withdrawal Statute requires defendants to
show that their pleas were not in fact knowingly and voluntarily
made”); State v. Ciccolelli, 2019 UT App 102, ¶ 10 (“The burden of
proof is on the defendant who must show either that he did not
in fact understand the nature of the constitutional protections
that he was waiving by pleading guilty, or that he had such an
incomplete understanding of the charge that his plea cannot
stand as an intelligent admission of guilt.” (quotation

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 State v. Archuleta

simplified)). A defendant cannot meet this burden simply by
demonstrating noncompliance with rule 11 of the Utah Rules of
Criminal Procedure. See Alexander, 2012 UT 27, ¶ 25 (stating that
a district court’s failure to comply with rule 11 is not, by itself,
grounds to withdraw a guilty plea, “because compliance with
rule 11 is not mandated by the Plea Withdrawal Statute or by the
U.S. Constitution”); see also Utah R. Crim. P. 11(l) (stating that
strict compliance with rule 11 is not necessary, and that “[a]ny
variance from the procedures required by this rule which does
not affect substantial rights shall be disregarded”).

¶20 Here, Archuleta has not met his burden of showing that
his plea was not knowingly and voluntarily entered. At the plea
hearing, Judge West asked Archuleta if he was thinking clearly,
and he answered in the affirmative. Archuleta complains that the
actual question posed was a compound question, asking both (a)
if he was under the influence of any drugs, and (b) if he was
thinking clearly. Archuleta notes that the first part of this
question is best answered in the negative, while the second is
best answered in the affirmative, and postulates that his
affirmative answer might be considered responsive to the first
part of the question rather than the second. While we certainly
acknowledge that it would have been better for the district court
to ask the two parts of the question separately, or at least wait
for an audible answer 4 to the first part before proceeding to the
second, when we consider the record as a whole we do not
consider it unclear. The court also asked Archuleta plainly
whether his plea was voluntary, and Archuleta clearly answered

4. It is possible that the district court elicited a non-verbal
affirmative response (e.g., a nod) to the first part of the inquiry,
and then proceeded to the second. We note that nods and shakes
of the head are not picked up on an audio-based record, and
therefore urge trial judges to make sure to elicit audible
responses from witnesses and litigants.

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 State v. Archuleta

in the affirmative. Moreover, the import of the two-part question
about drug use was clear enough: it gave both Archuleta and his
attorney the opportunity to inform the court if either of them
thought that Archuleta was under the influence of mind-altering
drugs or medication, or if either of them thought that Archuleta
was not in a mental state conducive to entry of a felony guilty
plea. Not only did neither of them seize that opportunity orally,
but both certified in writing that Archuleta was of sufficiently
sound mind that day to enter a plea. “‘Solemn declarations in
open court carry a strong presumption of verity.’” Arriaga v.
State, 2018 UT App 160, ¶ 15, 436 P.3d 222 (quoting Blackledge v.
Allison, 431 U.S. 63, 74 (1977)), cert. granted, 437 P.3d 1247 (Utah
2019). And although a “defendant’s own assurances of his
capacity are not conclusive, courts have commonly relied on the
defendant’s own assurance . . . that the defendant’s mind is
clear.” Oliver v. State, 2006 UT 60, ¶ 13, 147 P.3d 410 (quotation
simplified). Given Archuleta’s own representations—both oral
and written—to the district court at the plea hearing, the court
was not obligated to investigate the matter further. See State v.
Powell, 2015 UT App 250, ¶ 6 n.1, 361 P.3d 143 (stating that,
where the defendant had “assured the court that he had not
taken any drugs, alcohol, or medication prior to the hearing,”
and where “the court observed nothing in [the defendant’s]
demeanor that suggested impairment,” the court “had no reason
to suspect that [the defendant] might be impaired” and was
therefore under no “obligation to engage in a more meaningful
assessment of his competence at the time of the plea hearing”).

¶21 We also have no reason to question Judge Valencia’s
conclusion that she found Archuleta’s claims at the sentencing
hearing less credible than his earlier representations. Archuleta
did not raise the impairment issue with the district court—
despite multiple opportunities to do so, and despite sending in
several handwritten letters to the court—until February 2018,
after he had learned that both Judge West and Judge Valencia
were inclined to sentence him to prison instead of probation.

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 State v. Archuleta

Judge Valencia also noted that, at the time he claimed to have
been under the influence, Archuleta had been incarcerated for
more than a year, and illegal drugs are presumably difficult to
obtain when one is behind bars. While Archuleta claimed, at the
sentencing hearing, to have evidence supporting his claim, he
failed to submit any to the district court. 5

¶22 Moreover, even if Archuleta had borne his burden—and
he has not—of demonstrating that he had taken a drug of some
kind on the day of his plea hearing, he has in any event not
demonstrated that his alleged drug use resulted in him being
impaired. We have recently observed that “the use of drugs
alone does not render [a defendant] incompetent.” Ciccolelli, 2019
UT App 102, ¶ 12. “Instead, it is ‘the drug’s effect and not the
mere presence of the drug that matters.’” Id. (quoting Oliver,
2006 UT 60, ¶ 7); see also State v. Beckstead, 2006 UT 42, ¶ 21, 140
P.3d 1288 (upholding a district court’s determination that a
defendant who had consumed alcohol had entered a valid guilty
plea); Powell, 2015 UT App 250, ¶¶ 7–8 (affirming the denial of a
motion to withdraw a plea where the defendant had ingested
drugs on the morning of the plea hearing but had failed to prove
any actual mental impairment as a result). In order to meet his
burden in this context, Archuleta “must show how his . . . ability
to understand the plea agreement was impaired” by his alleged
drug use. See Ciccolelli, 2019 UT App 102, ¶ 13 (emphasis added).
Other than his general statement to the district court that he

5. Although not part of the record, even the jail write-up
Archuleta submitted in connection with his rule 23B motion
indicated only that he had drug paraphernalia—but not
necessarily drugs—in his cell some two weeks after his plea
hearing. Of course, the fact that Archuleta had paraphernalia in
his cell on December 1, 2017 does not, on its own, support a
claim that he was under the influence of drugs on or about
November 15, 2017.

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 State v. Archuleta

remembered being in a “dream state” at his plea hearing, he has
not attempted to do so. Like the defendant in Ciccolelli, Archuleta
has “provided no evidence of what drugs he used, when he used
them, how long they would have stayed in his system, or how
they would have affected his competency.” See id. ¶ 14.

¶23 To meet his burden, Archuleta must have presented the
district court with “objective evidence” that he was “so impaired
by drugs when he pleaded that he was incapable of full
understanding and appreciation of the charges against him, of
comprehending his constitutional rights and of realizing the
consequences of his plea.” Powell, 2015 UT App 250, ¶¶ 5, 7
(quotation simplified). When, as here, the only evidence a
defendant puts forward are his own “self-serving statements,”
“this falls far short of carrying his burden of establishing that,
during the plea hearing, he did not understand either the
charges against him or the constitutional protections he was
waiving by pleading guilty.” Ciccolelli, 2019 UT App 102, ¶ 14
(quotation simplified). Because Archuleta has not carried his
burden on appeal of demonstrating that his guilty plea was not
knowingly and voluntarily made, we affirm the district court’s
decision to deny Archuleta’s motion to withdraw his plea.

II

¶24 Second, Archuleta argues that his attorney provided
ineffective assistance. “To succeed on a claim of ineffective
assistance of counsel, a defendant must show both ‘that
counsel’s performance was deficient’ and ‘that the deficient
performance prejudiced the defense.’” State v. Galindo, 2017 UT
App 117, ¶ 7, 402 P.3d 8 (quoting Strickland v. Washington, 466
U.S. 668, 687 (1984)). There is no “checklist for judicial evaluation
of attorney performance,” since such a list “would interfere with
the constitutionally protected independence of counsel and
restrict the wide latitude counsel must have in making tactical
decisions.” Strickland, 466 U.S. at 688–89. However, counsel does

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 State v. Archuleta

have “a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” Id. at 691. But this duty “does not require counsel
to interview every possible relative or acquaintance or to fully
investigate every potential lead.” Menzies v. State, 2014 UT 40,
¶ 183, 344 P.3d 581. Rather, “a particular decision not to
investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.” Strickland, 466 U.S. at 691.

¶25 Specifically, Archuleta alleges that his attorney, post-plea,
failed to investigate and follow up on two issues: (a) his claim
that he was under the influence of drugs and therefore not in a
position to enter a guilty plea on November 15, 2017, and (b) his
claim that he did not participate in the June 2016 robbery. We
discuss each of these matters, in turn.

A

¶26 Archuleta’s first claim is that his attorney should have
more thoroughly investigated the issue of whether Archuleta
was under the influence of drugs when he entered his plea. We
reject this claim because Archuleta has not carried his burden of
demonstrating that his attorney performed deficiently with
regard to this issue.

¶27 In establishing that his attorney rendered constitutionally
ineffective assistance, Archuleta “bears the burden of assuring
the record is adequate.” State v. Litherland, 2000 UT 76, ¶ 16, 12
P.3d 92. If the record is inadequate, “we construe any
deficiencies in favor of a finding that counsel performed
effectively.” State v. de la Cruz-Diaz, 2012 UT App 179, ¶ 4, 282
P.3d 1041 (quotation simplified). Here, there is no evidence in
the record that supports Archuleta’s claim that his attorney
failed to investigate the issue of Archuleta’s competence at the
plea hearing.

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 State v. Archuleta

¶28 Archuleta claims that he told his attorney approximately a
week after entry of his guilty plea that he was intoxicated at the
time of his plea hearing and that there was “proof in the jail” in
the form of a write-up. But Archuleta never submitted any
evidence to support this assertion, or any evidence that his
attorney failed to adequately investigate it. 6 Indeed, as the
sentencing court observed, Archuleta’s attorney was with
Archuleta when he pled guilty and had an opportunity to
observe his behavior and demeanor first-hand. Archuleta fails to
explain why, in this case, his attorney’s observations were an
inadequate method of gauging whether Archuleta’s “ability to
understand the plea agreement was impaired,” see State v.
Ciccolelli, 2019 UT App 102, ¶ 13, and does not say what else he
believes his attorney should have done to investigate further, or
what else—other than the jail citation dated December 1, which
we have already found to be unhelpful—the attorney might
have discovered. In short, Archuleta has not persuaded us that
all reasonable attorneys would have pursued the matter further.

¶29 On this record, Archuleta has not carried his burden of
demonstrating that his attorney performed deficiently by failing
to further investigate his claim of intoxication; for all we can tell

6. As noted, even the jail write-up that Archuleta submitted with
his rule 23B motion is dated two weeks after the plea hearing.
Not only does this timeline contradict Archuleta’s claim that he
told his attorney about the proof a week after the hearing, but as
discussed above the jail write-up is far from the “objective
evidence” necessary to show that Archuleta did not make a
knowing and voluntary plea. See State v. Powell, 2015 UT App
250, ¶¶ 5, 7, 361 P.3d 143; see also State v. Ciccolelli, 2019 UT App
102, ¶ 14 (stating that the defendant must provide some
“evidence of what drugs he used, when he used them, how long
they would have stayed in his system, or how they would have
affected his competency”).

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 State v. Archuleta

from this record, his attorney completed a reasonable
investigation but found nothing helpful. Archuleta has likewise
not shown that his attorney was ineffective for failing to bring a
motion to withdraw Archuleta’s plea on that basis, a motion we
have already determined was correctly denied. See State v. Bond,
2015 UT 88, ¶ 63, 361 P.3d 104 (“The failure of counsel to make
motions that would be futile if raised does not constitute
ineffective assistance.” (quotation simplified)).

B

¶30 Next, Archuleta claims that his attorney performed
deficiently by failing to sufficiently investigate a potential
exculpatory witness, and for failing to take some action (such as
filing a motion to withdraw the plea, a motion to arrest
judgment, or a motion for a new trial) in connection with the
investigation. We also reject this claim, because Archuleta has
failed to carry his burden of demonstrating that his attorney
rendered ineffective assistance on this issue either.

¶31 As an initial matter, Archuleta has failed to introduce into
the record any actual exculpatory evidence that his trial counsel
should have discovered after the plea hearing. 7 But even if such

7. The witness statement that Archuleta procured on February
10, 2018 was never submitted to the district court and, because
we denied Archuleta’s rule 23B motion, is not properly before us
on appeal. We denied Archuleta’s rule 23B motion in part
because, even if that witness statement had been made part of
the record, it would not provide Archuleta with the assistance he
seems to claim. Archuleta characterizes the statement as “totally
exonerating,” and asserts that the statement indicates that the
witness (rather than Archuleta) “was responsible for the crime”
and has “confess[ed] to the crime of which [Archuleta] stands
accused.” These statements are simply not accurate. In reality,
(continued…)

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 State v. Archuleta

evidence existed, Archuleta has not demonstrated that—post-
plea and prior to sentencing 8—his attorney had any sort of
useful outlet for such evidence. Although Archuleta’s arguments
along these lines are not well-developed, he does postulate that
an attorney, armed with such evidence, could have potentially
made three types of motions: a motion to withdraw the plea, a
motion to arrest judgment, or a motion for a new trial. We
discuss each potential option in turn, but conclude that
Archuleta has fallen short of convincing us that any of them
would have been viable.

¶32 First, Archuleta has not persuaded us that such evidence
would have helped him support a successful motion to
withdraw his plea. As discussed above, to withdraw a guilty
plea a defendant must show that the plea was not knowingly
and voluntarily made. State v. Ruiz, 2012 UT 29, ¶ 32, 282 P.3d

(…continued)
the witness claims he rode along with three individuals—
“Deana Bailey,” a “Mexican” man known as “Jaybird,” and a
“white male” known as “Sam”—on the night of the incident,
thinking they were going to purchase some “dope.” According
to the witness, when the foursome arrived at the house, Deana
ordered him to stay with the vehicle while she and the two men
went inside the house armed with guns. At no point does the
witness admit to entering the residence or assaulting anyone; he
certainly does not confess to committing the charged crimes in
Archuleta’s place. And Archuleta has presented no evidence of
the identity of either Jaybird or Sam; for all we know, one of
those men was Archuleta, in which case the witness’s version of
events would not be inconsistent with the State’s.

8. Archuleta does not claim that his counsel was aware of, or
should have investigated, any particular witness prior to the
entry of his plea.

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 State v. Archuleta

998 (stating that, in light of the amendment to Utah Code section
77-13-6, “judges may now grant a motion to withdraw only when
they determine that a defendant’s plea was not knowingly and
voluntarily entered”). Archuleta has not directed our attention to
a single Utah case decided under the auspices of our current plea
withdrawal statute that allows the withdrawal of a guilty plea
based upon the post-plea discovery of additional evidence. 9 And
Archuleta has not cited any out-of-state case law supporting this
proposition either; indeed, our own research reveals that other
jurisdictions appear reluctant to allow the withdrawal of guilty

9. In State v. Ruiz, 2012 UT 29, 282 P.3d 998, our supreme court
disavowed its previous holding in State v. Gallegos, 738 P.2d 1040
(Utah 1987), in which it had interpreted a prior version of the
plea withdrawal statute. In Gallegos, the defendant sought to
withdraw his guilty plea after the State’s lead witness admitted,
in a sworn affidavit, that she had lied at the preliminary hearing.
Id. at 1041. Interpreting the statutory language at the time, which
allowed a guilty plea to be withdrawn “upon good cause shown
and with leave of court,” Utah Code Ann. § 77-13-6 (Allen Smith
Co. 1982), the Gallegos court held that “a presentence motion to
withdraw a guilty plea should, in general, be liberally granted,”
738 P.2d at 1042. In 2003, our legislature struck the “good cause
shown” language from the plea withdrawal statute, see Utah
Code of Criminal Procedure Amendments, ch. 290, § 1, 2003
Utah Laws 1321, and the current statute allows withdrawal
“only upon . . . a showing that [the plea] was not knowingly and
voluntarily made,” Utah Code Ann. § 77-13-6(2)(a) (LexisNexis
2017). In Ruiz, our supreme court acknowledged the effect of this
amendment and accordingly held “that the ‘liberally granted’
instruction given in Gallegos is no longer applicable,” and that
“based on the plain language of the Plea Withdrawal Statute, . . .
on a presentence motion to withdraw, the burden of proof is on
the defendant, who must show that his or her plea was not
knowingly and voluntarily made.” Ruiz, 2012 UT 29, ¶ 37.

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 State v. Archuleta

pleas under such circumstances. See, e.g., In re Reise, 192 P.3d 949,
955 (Wash. Ct. App. 2008) (stating that by pleading guilty, a
defendant “assumes the risk that the State’s potential trial
evidence will weaken: a State witness might not attend trial,
might move away, might die; a new exculpatory witness might
come forward; or new laboratory tests might be less conclusive,”
and noting that “[t]he passage of time always changes the
quantity and quality of potential State’s evidence,” and
concluding that, “by pleading guilty, the defendant gives up the
right to force the State to prove its case with the potential
evidence” and therefore “a guilty plea thus generally bars a later
collateral attack based on newly discovered evidence”). After all,
evidence discovered after entry of a plea does not necessarily go
to whether the plea was knowingly and voluntarily made at the
time it was entered. Because Archuleta cites no law supporting
his contention that a motion to withdraw would have been
available in this situation, and because he makes no attempt to
articulate why a reasonable attorney would have brought such a
motion in the absence of helpful authority, see State v. Silva, 2019
UT 36, ¶ 20, he has not carried his burden of demonstrating that
his attorney was ineffective for failing to file a motion to
withdraw his plea based on newly-discovered evidence, see State
v. Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 (“The failure of counsel to
make motions that would be futile if raised does not constitute
ineffective assistance.” (quotation simplified)).

¶33 Archuleta has likewise failed to demonstrate how the
witness’s statement—or even a statement from a witness
claiming that he had committed the charged crimes in
Archuleta’s place—would have been helpful in supporting a
motion to arrest judgment. Such motions are reserved for
exceptional situations, such as where “the facts proved or
admitted do not constitute a public offense” or where “the
defendant is mentally ill.” See Utah R. Crim. P. 23. Archuleta
cites no case in which a motion to arrest judgment was granted
post-plea due to the belated discovery of evidence of the type

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 State v. Archuleta

Archuleta claims to have, and there is Utah case law suggesting
that such a motion may be unavailable in this context in any
event. See State v. Black, 2015 UT App 30, ¶ 17, 344 P.3d 644
(holding that “it was error for the district court to arrest
judgment based upon evidence never presented to the jury”).
And even if we were to assume that a motion to arrest judgment
were available in this context, the evidence Archuleta claims to
have would not cause a court to grant such a motion, because
that evidence would not—as might, say, a recantation by the
State’s star witness, or immutable physical proof of innocence
(from DNA, for instance)—demonstrate a “manifest injustice,”
see Reise, 192 P.3d at 956, or even necessarily render the evidence
that the State described at the plea hearing “so inconclusive or so
inherently improbable . . . that reasonable minds must have
entertained a reasonable doubt” about Archuleta’s involvement,
see State v. Bolson, 2007 UT App 268, ¶ 10, 167 P.3d 539 (quotation
simplified). At best, the witness statement gives notice of the
existence of another witness, in addition to Archuleta, who could
have challenged Smith’s version of events. Such evidence, while
certainly helpful to Archuleta, does not provide the sort of boost
necessary to support a motion to arrest judgment, because even
in the face of such a statement, the State would still have been in
possession of evidence (among other things, Smith’s testimony)
that could, if credited, have supported a conviction.
Accordingly, Archuleta’s attorney could not have been
constitutionally ineffective for failing to file such a motion. See
Bond, 2015 UT 88, ¶ 63.

¶34 Finally, Archuleta has not carried his burden of
demonstrating that filing a motion for a new trial on the grounds
of newly-discovered evidence would have helped him in this
situation. We note that the very name of the motion—for new
trial—presupposes the existence of a first trial (or at least a
judicial adjudication of some sort, as opposed to a negotiated
resolution), as does the language of the rule. See generally Utah R.
Crim. P. 24. Archuleta cites no Utah case law applying rule 24

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 State v. Archuleta

post-plea in cases concerning newly-discovered evidence, and
other jurisdictions appear reluctant to grant motions for new
trial on the basis of newly discovered evidence following the
entry of a guilty plea. See Reise, 192 P.2d at 955 (stating that “a
guilty plea thus generally bars a later collateral attack based on
newly discovered evidence”); see also People v. Ramos, 251 P. 941,
942 (Cal. Ct. App. 1926) (holding that “the right to a new trial . . .
does not apply when the defendant is awaiting judgment under
a plea of guilty”). As above, where Archuleta neither cites any
law in support of his position, nor makes any attempt to
articulate why a reasonable attorney would have brought the
motion in the absence of helpful authority, he has not carried his
burden of showing deficient performance by counsel. See Bond,
2015 UT 88, ¶ 63. 10

CONCLUSION

¶35 The district court did not err when it denied Archuleta’s
motion to withdraw his plea, because Archuleta has not carried
his burden of demonstrating that his plea was not knowingly
and voluntarily entered. Further, Archuleta has not carried his
burden of demonstrating that his attorney performed deficiently.
We therefore affirm Archuleta’s convictions.

10. Archuleta also argues that his counsel was ineffective for
acknowledging to the district court that he could find no support
for withdrawing Archuleta’s guilty plea at the time. Based on
our review of the record in this case, counsel was correct in his
assessment. Attorneys owe a duty of candor to the courts, Utah
R. Prof’l Conduct 3.3, and we are certainly not inclined to open
attorneys up to claims for ineffective assistance simply for
complying with that duty.

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