State v. Thompson

2020 UT App 148

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
BRANDON KEITH THOMPSON,
Appellant.

Opinion
No. 20190509-CA
Filed November 5, 2020

First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 181100192

Ryan L. Holdaway and Diane Pitcher, Attorneys
for Appellant
Sean D. Reyes and Nathan Jack, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Brandon Keith Thompson appeals the district court’s
denial of his motion to withdraw his guilty plea to murder as
well as the court’s ruling binding him over on a charge of
aggravated murder. We affirm.

BACKGROUND

¶2 Following a confrontation, Thompson shot his unarmed
roommate (Roommate) several times. One shot severed
Roommate’s femoral artery, causing him to quickly bleed to
death. Thompson told police that at the time of the shooting,
Roommate was charging at him up a flight of stairs and
 State v. Thompson

threatening to kill him and that he was not aiming to hit
Roommate but only to scare him so he would stop coming
toward Thompson. The State charged Thompson with
aggravated murder, possession of a firearm by a restricted
person, and obstruction of justice.

¶3 At the preliminary hearing, Thompson argued that he
should not be bound over on the aggravated murder charge,
because his prior conviction for third-degree aggravated assault,
on which the State relied to support the aggravated murder
charge, could not serve as a predicate offense to elevate this
homicide to aggravated murder. After examining the statutory
language, the court rejected Thompson’s argument and bound
him over on the aggravated murder charge.

¶4 Initially, Thompson intended to argue that he acted in
self-defense, and his attorneys were preparing a defense along
those lines for trial. In the course of this preparation, however,
Thompson’s attorneys became increasingly concerned about
their ability to prevail on a perfect self-defense theory in light of
various weaknesses in the evidence. For example, although
Thompson claimed that Roommate was charging him when he
shot Roommate, none of Roommate’s gunshot wounds were on
the front of his body. Additionally, the location where
Roommate’s blood had pooled and the location of the bullet
casings were inconsistent with Thompson’s claim that he shot
Roommate while he was charging up the stairs. Moreover, two
hours elapsed between the shooting and the time the police were
called, during which time Thompson attempted to discard the
gun and Roommate’s identification and also called several
people. There were also various inconsistencies in Thompson’s
story that his attorneys were concerned might undermine his
credibility.

¶5 In light of this evidence, Thompson’s attorneys came to
believe that the “best-case scenario at trial” would be a finding
of “imperfect self-defense, which would have . . . reduce[d] the
aggravated murder [charge] down to murder” but would not

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have resulted in acquittal. They were also concerned that there
was a real possibility Thompson “could be convicted of . . .
aggravated murder.”

¶6 Thompson’s attorneys managed to negotiate a plea deal
in which the State would drop Thompson’s aggravated murder
charge and allow him to plead guilty to murder, possession of a
firearm by a restricted person, and obstruction of justice.
Thompson’s attorneys discussed the details and viability of
Thompson’s self-defense claims with him and explained the
potential sentences he would face under each scenario. After
discussing the matter with his attorneys, Thompson decided to
accept the deal and plead guilty.

¶7 At the plea hearing, the court conducted a standard plea
colloquy. Thompson confirmed that he understood the terms of
the plea, that his plea was knowing and voluntary, and that by
changing his plea to guilty, he was forgoing his right to present a
defense. The prosecutor read the factual basis for the plea, and
the court asked Thompson, “[I]s that what happened?”
Thompson responded, “For the most part, yes.” The court asked
Thompson, “Okay, any clarifications you want to put on the
record?” Thompson replied, “No.”

¶8 At that point, Thompson’s attorney stated that he wanted
to “put on the record” that in Thompson’s mind, “he was
defending himself” and that the incident was not, “in his mind,
an intentional murder.” The attorney went on to clarify that
Thompson “knowingly caused the death of the victim . . . , and
that’s why he’s entering his plea because he thinks it’s in his best
interest to do so.” The court then found that the facts supported
the plea and that it was knowing and voluntary. Accordingly, it
accepted Thompson’s guilty plea.

¶9 Prior to sentencing, Thompson obtained new counsel and
moved to withdraw his guilty plea. He argued that he was not
adequately informed regarding self-defense and did not know
the State had the burden of disproving a claim of self-defense;

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that his attorneys falsely told him that he would serve only
eleven years in prison with the plea bargain, despite the
minimum sentence for his murder charge being fifteen years;
and that he was coerced to plead guilty by threats of prosecution
against his girlfriend.

¶10 The district court held an evidentiary hearing on
Thompson’s motion to withdraw his plea, at which Thompson
and his former attorneys each testified. Following the hearing,
the district court found counsel to be “much more credible” than
Thompson. The court found that Thompson had been
adequately informed regarding self-defense and his potential
sentences and that Thompson had not been coerced into
pleading guilty. Based on these findings, it determined that
Thompson’s plea was knowing and voluntary. Accordingly, the
court denied Thompson’s motion and proceeded to sentence
him. Thompson now appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Thompson first asserts that his plea was not knowing and
voluntary because he did not understand the State’s burden to
disprove self-defense, he was misinformed regarding the
potential consequences of pleading guilty to murder, and his
attorneys coerced him into pleading guilty. He further argues
that the district court should have permitted him to withdraw
his plea due to the court’s alleged failure to adequately inquire
into the self-defense claim asserted by his counsel at the plea
hearing.

¶12 “We will overturn a sentencing court’s ruling on a motion
to withdraw a guilty plea only when we are convinced that the
court has abused its discretion.” State v. Beckstead, 2006 UT 42,
¶ 7, 140 P.3d 1288. In doing so, “[w]e review a district court’s
compliance with the constitutional and procedural safeguards
surrounding the entry of a guilty plea for correctness,” State v.
Collins, 2015 UT App 214, ¶ 1, 359 P.3d 664, but “[w]e will

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disturb findings of fact made in connection with a ruling on a
motion to withdraw a guilty plea only if they are clearly
erroneous,” Beckstead, 2006 UT 42, ¶ 7.

¶13 Thompson also challenges the district court’s bindover
decision. “Bindover determinations are mixed questions of law
and fact to which we grant some deference.” State v. Schmidt,
2015 UT 65, ¶ 13, 356 P.3d 1204 (quotation simplified). But
because the bindover determination turned on a question of
statutory interpretation, we review it for correctness. See State v.
Lara, 2003 UT App 318, ¶ 9, 79 P.3d 951.

ANALYSIS

I. The District Court Did Not Exceed Its Discretion in Denying
Thompson’s Motion to Withdraw His Plea

¶14 Thompson raises two arguments with respect to the
court’s denial of his motion to withdraw his plea. First, he
asserts that the court erred in determining that his plea was
knowing and voluntary. Second, he alleges that the court’s
inquiry into his claim of self-defense at the plea hearing was
inadequate and that he should be permitted to withdraw his
plea on the basis of that inadequacy. We reject both of
Thompson’s arguments.

A. Thompson Has Failed to Adequately Challenge the
District Court’s Factual Findings in Support of Its
Determination That His Plea Was Knowing and
Voluntary

¶15 The ultimate question to be determined in a motion to
withdraw a plea is whether the defendant’s plea was knowing
and voluntary. State v. Alexander, 2012 UT 27, ¶ 23, 279 P.3d 371.
In resolving that question, “the burden of proof is on the
defendant, who must show that [the] plea was not knowingly
and voluntarily made” by demonstrating “either that he did not

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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.” Id. (quotation
simplified).

¶16 On appeal, Thompson asserts that his plea was not
knowing and voluntary because (1) he did not understand that
the State would carry the burden of proof on his self-defense
claim, (2) his attorneys misinformed him of the consequences of
pleading guilty, and (3) his attorneys coerced him into pleading
guilty. The district court addressed each of these claims in its
ruling on Thompson’s motion to withdraw his plea. The court
found that “[h]aving weighed the contrasting testimonies of
[Thompson] and his former counsel,” counsel was “much more
credible.”

¶17 With respect to the self-defense claim, the court found
that “former counsel thoroughly discussed and explained to
[Thompson] . . . imperfect self-defense, perfect self-defense, and
the viability of those defenses,” that “former counsel took ample
time to explain and present the realities of each option,” and that
Thompson “then took time to consider the issues and
contemplate whether to take a plea.”1

¶18 As to sentencing, the court found that “[f]ormer counsel
thoroughly explained the potential sentences of 25-years-to-life
or life-without-parole that [Thompson] was facing if convicted at

1. Although the court did not explicitly state that counsel had
informed Thompson of the burden of proof, the court’s finding
that counsel’s explanation was “thorough[]” can be reasonably
construed as an implicit finding that counsel explained the
burden of proof, particularly in light of the court’s further
finding that counsel’s testimony, which included a
representation that counsel had explained to Thompson “how
the burden of proof works for self-defense claims,” was credible.

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 State v. Thompson

trial”; that former counsel “presented and explained to
[Thompson] the plea deal, which would instead subject him to a
15-years-to-life sentence”; and that Thompson “knew about and
understood the different sentencing possibilities that could occur
by going to trial or taking the plea” as well as the fact “that he
was facing an indeterminate sentence.” The court further found
that although former counsel told Thompson about a similar
case where a defendant was released after twelve years and also
told him about potential “programs and opportunities” that
might cause the parole board to grant him an early release,
counsel “did not promise or create an expectation that
[Thompson’s] sentence would be reduced” or tell him that the
parole board would not consider him a violent offender.

¶19 Finally, with respect to Thompson’s claim of coercion, the
court found that none of former counsel’s “conversations or tone
of voice were ever threatening or could be construed as forcing
[Thompson] to do something he did not want to do.” It also
found that Thompson “was not coerced or threatened by the
State or former defense counsel to accept a plea deal in order to
avoid prosecution” of his girlfriend and that “[a]ny perceived
notions that [he] was required to plea to avoid [his girlfriend]
being prosecuted were solely a product of [Thompson’s] own
thoughts and misperception.”

¶20 To successfully challenge a district court’s factual findings
on appeal, an appellant must “establish[] a basis for overcoming
the healthy dose of deference owed to factual findings,”
generally by “identify[ing] and deal[ing] with supportive
evidence” through the process of marshaling. State v. Nielsen,
2014 UT 10, ¶¶ 40–41, 326 P.3d 645. “[A] party challenging a
factual finding . . . will almost certainly fail to carry its burden of
persuasion on appeal if it fails to marshal.” Id. ¶ 42. This is the
case with Thompson.

¶21 Thompson does not address the basis of the court’s
findings or its credibility determinations. He does not analyze
the actual statements and information the court had before it or

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discuss whether that evidence was adequate to support its
finding at the plea withdrawal hearing that the plea was
knowing and voluntary. Further, in discussing the court’s factual
findings, Thompson merely attempts to reargue his position,
relying solely on his own testimony at the plea withdrawal
hearing to the exclusion of all other evidence supporting the
court’s findings—most notably, his former attorneys’ testimony
on which the court primarily relied.

¶22 Thompson’s failure to engage with the evidence on which
the district court relied precludes him from carrying his burden
of persuasion to demonstrate that the court’s findings were
clearly erroneous or that the court exceeded its discretion in
determining, based on those findings, that Thompson’s plea was
knowing and voluntary. Accordingly, we have no basis to
conclude that the district court exceeded its discretion in
denying Thompson’s motion to withdraw his plea.

B. Thompson Has Not Adequately Challenged the Court’s
Determination That There Was a Factual Basis to Support
the Plea

¶23 Thompson next asserts that the court’s inquiry at the plea
hearing into his self-defense claim was insufficient and that the
court therefore did not have enough information before it to
ascertain whether there was an adequate factual basis for the
plea. We agree with Thompson that when, as here, self-defense
is put at issue before the court, the factual basis for a plea of
guilty to first-degree murder must include the absence of self-
defense. But Thompson has not adequately challenged the
district court’s finding that there was a factual basis to support
his plea.

¶24 In North Carolina v. Alford, 400 U.S. 25 (1970), the U.S.
Supreme Court suggested that “pleas coupled with claims of
innocence should not be accepted unless there is a factual basis
for the plea and until the judge taking the plea has inquired into
and sought to resolve the conflict between the waiver of trial and

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 State v. Thompson

the claim of innocence.” Id. at 38 n.10 (quotation simplified); see
also State v. Stilling, 856 P.2d 666, 672 (Utah Ct. App. 1993). This
approach furthers the goal of “insuring that guilty pleas are a
product of free and intelligent choice.” Alford, 400 U.S. at 38 n.10.
Indeed, establishing a factual basis for the plea is an essential
step in determining that the plea is knowing and voluntary
because “[a] court cannot be satisfied that a guilty plea is
knowing and voluntary unless the record establishes facts that
would place the defendant at risk of conviction should the
matter proceed to trial.” Willett v. Barnes, 842 P.2d 860, 862 (Utah
1992); see also State v. Breckenridge, 688 P.2d 440, 443 (Utah 1983)
(explaining that the lack of a factual basis for a guilty plea
demonstrates that a defendant “did not understand the nature
and elements of the crime to which he pled guilty”).

¶25 Thompson asserts that a claim of self-defense is similar
to a claim of innocence in that it alerts the court to the
possibility that the defendant does not understand all the
elements of the charge against them. Our supreme court has
recently explained that because the absence of self-defense is an
element that must be proved by the State, evidence that a
defendant does not understand that element or the State’s
burden with respect to it can support a determination that a plea
is not knowing and voluntary. Arriaga v. State, 2020 UT 37, ¶¶ 20,
29, 469 P.3d 914.

¶26 However, Thompson does not address the district court’s
finding that there was an adequate factual basis for the plea.
Instead, he asserts that the court could not have had enough
information to ascertain whether his plea was knowing and
voluntary in the absence of further inquiry into his self-defense
claim. As he puts it, “the failure of the district court to inquire
further into [his] conflicting claims of innocence and guilt is
sufficient alone to justify reversal and remand.” But Thompson
has pointed us to nothing suggesting that a particular form of
inquiry into this conflict is constitutionally required or that the
lack thereof establishes a standalone basis to withdraw a guilty
plea.

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 State v. Thompson

¶27 Our plea withdrawal statute identifies a single ground
that can support withdrawal of a guilty plea: “A plea of guilty or
no contest may be withdrawn only upon leave of the court and a
showing that it was not knowingly and voluntarily made.” 2
Utah Code Ann. § 77-13-6 (LexisNexis 2017) (emphasis added).
“This statutory standard mirrors the showing necessary for
defendants to prove that their pleas are unconstitutional.” State
v. Alexander, 2012 UT 27, ¶ 19, 279 P.3d 371. A plea is knowing
and voluntary when the defendant has “knowledge of the nature
of the charges, of the constitutional rights being waived, and of
the likely consequences of entering the guilty plea.” State v.
Candland, 2013 UT 55, ¶ 13, 309 P.3d 230; see also Arriaga, 2020 UT
37, ¶ 20 (“A defendant must understand the nature and elements
of the offense to which the plea is entered, that upon trial the
prosecution would have the burden of proving each of those
elements beyond a reasonable doubt, and that the plea is an
admission of all of those elements.” (quotation simplified)).

¶28 While a court’s failure to comply with certain procedures
may be fatal to the extent that it demonstrates that the plea was
unknowing or involuntary, such a failure is not alone sufficient
to support a motion to withdraw a guilty plea. See, e.g.,
Alexander, 2012 UT 27, ¶¶ 25–26; Bluemel v. State, 2007 UT 90,
¶ 18, 173 P.3d 842. Our supreme court has “traditionally granted
sentencing courts substantial discretion to employ methods
tailored to determine whether a specific guilty plea is knowing
and voluntary” and has “stated that such a determination does

2. Although a motion to withdraw a plea may be premised on a
court’s failure to find that there is a factual basis for the plea,
such a failure is not an additional ground for withdrawing the
plea but rather one facet of the requirement that a plea be
knowing and voluntary. As our supreme court has explained,
“[a] court cannot be satisfied that a guilty plea is knowing and
voluntary unless the record establishes facts that would place the
defendant at risk of conviction should the matter proceed to
trial.” Willett v. Barnes, 842 P.2d 860, 862 (Utah 1992).

20190509-CA 10 2020 UT App 148
 State v. Thompson

not mandate a particular script or rote recitation.” State v.
Beckstead, 2006 UT 42, ¶ 11, 140 P.3d 1288 (quotation simplified).
Thus, the appropriate analysis under the plea withdrawal statute
is not whether the court completed a particular checklist but
“whether there is evidence that [the defendant] knew of their
constitutional rights and fully understood the charges.”
Alexander, 2012 UT 27, ¶ 25.

¶29 The court in this case found that there was a factual basis
for the plea. Furthermore, following the plea withdrawal
hearing, the court found that Thompson did indeed have a
complete understanding of his self-defense claim and that his
guilty plea—including his tacit admission that his conduct was
not legally justified by self-defense—was knowing and
voluntary. Apart from his general assertion that the court
needed more information to reach this conclusion, Thompson
has failed to explain why these findings were erroneous or why
the evidence supporting them was insufficient. Thus, Thompson
has not demonstrated that the district court exceeded its
discretion in denying his motion to withdraw his guilty plea.

II. The District Court Did Not Err in Its Bindover Decision on the
Aggravated Murder Charge

¶30 Thompson next asserts that the district court erred in
binding him over on the aggravated murder charge because his
previous aggravated assault conviction could not serve as a
predicate offense to support the aggravation element. 3

3. Generally, a bindover ruling such as this could not be
challenged on appeal unless the defendant preserved the right to
appeal the issue as part of a plea agreement. See State v. Sery, 758
P.2d 935, 938 (Utah 1988) (explaining that unless the plea
agreement “preserves [a pretrial] issue for appeal and allows
withdrawal of the plea if the defendant’s arguments” are
successful on appeal, “a voluntary guilty plea is a waiver of the
(continued…)

20190509-CA 11 2020 UT App 148
 State v. Thompson

¶31 Utah Code section 76-5-202(1)(j)(i) states that criminal
homicide is aggravated murder if “the actor was previously
convicted of . . . aggravated assault” under section 76-5-103(2) of
the Utah Code. Utah Code Ann. § 76-5-202(1)(j)(i) (LexisNexis
Supp. 2020). Subsection (2) of section 76-5-103 states,

(a) Any act under this section is punishable as a
third degree felony, except that an act under this
section is punishable as a second degree felony if:

(i) the act results in serious bodily injury; or

(ii) an act under Subsection (1)(b)(ii)
[involving choking] produces a loss of
consciousness.

(b) Aggravated assault that is a violation of Section
76-5-210, Targeting a law enforcement officer, and
results in serious bodily injury is a first degree
felony. 4

(…continued)
right to appeal all nonjurisdictional issues”). But the State
addressed Thompson’s bindover arguments on the merits and
did not raise a preservation argument. Our supreme court
recently explained that in situations like this, where an issue is
unpreserved and the appellee does not brief the preservation
issue, appellate courts have discretion to either “raise a
preservation issue on our own initiative when it provides an
alternative basis for affirmance” or “decide to address the matter
on appeal despite the lack of preservation.” State v. Malo, 2020
UT 42, ¶ 20 n.7, 469 P.3d 982. In this instance, we exercise our
discretion to address this argument on the merits.

4. The parties agree that the language we quote here is the
accurate statutory language. This language, however, was not
(continued…)

20190509-CA 12 2020 UT App 148
 State v. Thompson

Id. § 76-5-103(2). Further details of what specific conduct
constitutes aggravated assault are contained in subsection (1) of
the same section.

¶32 Thompson asserts that the legislature intended for only
second- and first-degree-felony aggravated assaults to constitute
predicate offenses that can support an aggravated murder
charge, since additional details of what constitutes those offenses
are found in subsection (2) whereas all the details of what
constitutes a third-degree felony are found in subsection (1). The
State, on the other hand, asserts that all three felony levels
constitute predicate offenses because all three are referenced in
subsection (2). We agree with the State.

¶33 When interpreting a statute, “we look first to the best
evidence of a statute’s meaning, the plain language of the act,”
and “we do not look beyond a statute’s plain language unless it

(…continued)
what appeared in the Utah Code statute books following the
2017 legislative session, in which this statute was amended by
two separate bills. The 2017 publication of the Utah Code
incorrectly limited the aggravated assault subsection referenced
by the aggravated murder statute to aggravated assault targeting
a police officer. Compare Utah Code Ann. § 76-5-103(2)–(3)
(LexisNexis 2017), with id. § 76-5-103(2) (Supp. 2020). If the
incorrect language appearing in the statute books had actually
been correct, Thompson should not have been bound over on a
charge of aggravated murder. The publication error was brought
to the district court’s attention in this case, and after examining
the relevant language of the two statutory amendments, the
district court ruled that bindover on the aggravated murder
statute was warranted. While Thompson appeals that decision,
he does not question the district court’s analysis of the
publication error and agrees with the State that the language we
quote herein represents the accurate and applicable statutory
language.

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 State v. Thompson

is ambiguous.” State v. McKinnon, 2002 UT App 214, ¶ 6, 51
P.3d 729 (quotation simplified). Although Thompson asks us
to examine legislative history in support of his arguments
regarding the legislature’s intent and also asks us to apply
the rule of lenity, we are unable to do so in light of
the unambiguous language in the statute. See State v. Rasabout,
2015 UT 72, ¶ 22, 356 P.3d 1258; see also McKinnon, 2002 UT App
214, ¶ 6.

¶34 The statute at issue in this case unambiguously includes
all three levels of aggravated assault in subsection (2). And there
is no reasonable basis for reading subsection (2) as pertaining
only to second- and first-degree felonies and not to third-degree
felonies. The underlying elements of all types of aggravated
assault are contained in subsection (1). Subsection (2) then
identifies the three potential felony levels that can apply to
aggravated assault charges. In doing so, subsection (2) performs
the same function with respect to all three levels—it identifies all
elements required for each, some of which come from subsection
(1), some of which are explicitly defined in subsection (2), and
one of which comes from another statutory provision. None of
these felonies is fully defined in the absence of subsection (1).
Furthermore, subsection (1) does not define the felony level of
any of the actions it outlines and does not refer specifically to
third-degree-felony aggravated assault. Thus, there is no basis in
the statutory language to determine that third-degree-felony
aggravated assault falls within subsection (1) while the other two
levels fall within subsection (2), as Thompson maintains. Rather,
the most reasonable interpretation of the statutory language is
that all levels of aggravated assault are addressed by subsection
(2) and can therefore constitute predicate offenses for aggravated
murder.

¶35 Accordingly, the district court did not err in binding
Thompson over on the aggravated murder charge based on his
previous aggravated assault conviction.

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CONCLUSION

¶36 Thompson has failed to establish that the district court
exceeded its discretion in determining that his plea was knowing
and voluntary. Further, the court’s alleged failure to adequately
inquire into Thompson’s self-defense claim does not provide an
independent basis for him to withdraw his guilty plea. Finally,
the court did not err in binding Thompson over on the
aggravated murder charge.

¶37 Affirmed.

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