State v. Harper

2020 UT App 84

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ERNEST CLAYTON HARPER,
Appellant.

Opinion
Nos. 20180024-CA and 20180250-CA
Filed May 29, 2020

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
Nos. 161911938 and 131401036

Ronald Fujino, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 Ernest Clayton Harper (Harper) pled guilty to stalking
his ex-girlfriend (Ex-Girlfriend), but attempted to withdraw
that plea after entering it. The district court refused to allow
Harper to withdraw his plea, and Harper now appeals, arguing
that the court abused its discretion by denying his motion to
withdraw, and that his attorney rendered ineffective assistance.
We affirm.

BACKGROUND

¶2 In 2016, while Harper was on probation in another
stalking case involving a different victim, Ex-Girlfriend reported
 State v. Harper

to police that Harper had trespassed on her property, sent her
hundreds of text messages, and threatened to post nude photos
of her on the Internet. The State arrested Harper and charged
him with stalking, a second-degree felony, 1 and criminal
trespass, a class B misdemeanor. A few months later, Harper
entered into a plea agreement with the State in which he agreed
to plead guilty to the stalking charge and the State agreed to
dismiss the criminal trespass charge. With regard to his eventual
sentence, the plea agreement stated as follows: “The State agrees
to a two-step 76-3-402 reduction if [Harper] compl[ies] 100%
with all terms and conditions of AP&P probation.”

¶3 At the plea hearing, Harper acknowledged that “the
penalty of this guilty plea could . . . put [him] in prison,” and the
district court informed him that it could sentence him to prison
even though “something less may be recommended.” Harper
also represented to the court that he was pleading guilty because
he had actually committed the crime in question, and not just
because he wanted to be released from jail. After a plea colloquy,
the district court accepted Harper’s plea, released him from jail
pending sentencing, ordered Adult Probation and Parole

1. Stalking is a second-degree felony if the offender “has been
convicted two or more times of the offense of stalking,” or “has
been previously convicted” of a stalking offense involving a
“cohabitant.” Utah Code Ann. § 76-5-106.5(7)(e), (8)(b), (8)(d),
(8)(f) (LexisNexis Supp. 2019). At the time of his arrest in this
case, Harper had pled guilty to stalking in two other cases,
although one of those pleas was being held in abeyance. And the
victim in one of the other cases was Harper’s ex-wife, who
qualifies as a “cohabitant” of Harper. See id. § 78B-7-102(3)(a)
(2018). On appeal, Harper does not challenge the level of his
stalking conviction.

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 State v. Harper

(AP&P) to prepare a presentence report, and scheduled a
sentencing hearing to take place a few weeks later.

¶4 AP&P completed its presentence report about a week
before the scheduled sentencing hearing, and it recommended
that Harper be sentenced to prison. Just a few days later,
Harper filed a motion seeking to withdraw his plea, although
in his motion he did not state the grounds upon which
his motion rested; he informed the court that “an
accompanying memorandum” would be filed at some point in
the future. The district court then postponed the sentencing
hearing.

¶5 In the meantime, on the same day Harper filed his motion
to withdraw his plea, Harper’s ex-wife (Ex-Wife) contacted
police to report that Harper had refused to return their child
(Child) after parent-time. When police tried to communicate
with Harper about returning Child to Ex-Wife’s care, they found
him uncooperative, and later that day arrested him on suspicion
of custodial interference. As two arresting officers were taking
Harper into custody, he “became combative” and kicked one of
the officers and head-butted the other. As a result of this
incident, the State later charged Harper, in a new case, with two
third-degree felony counts of “assault by prisoner.”

¶6 Several months later, after obtaining new counsel, Harper
filed a second motion to withdraw his plea, this time explaining
that his “emotional instability prevented him from knowingly
and voluntarily appreciating the full . . . consequences of his
guilty plea.” The new motion came accompanied by a sworn
declaration in which Harper averred that his counsel at the time
he entered the plea had told him he would get probation if he
pled guilty, and that Harper did not know that AP&P would
recommend prison.

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 State v. Harper

¶7 The court held a hearing to consider Harper’s motion. At
that hearing, his attorney asserted that previous counsel had
assured Harper “that he would get probation if he pled as
charged,” and argued that the language of the plea agreement—
stating that the State would agree to a sentence reduction as long
as Harper “compl[ies] 100% with all terms and conditions of
AP&P probation”—would clearly “imply to someone, especially
not legally trained,” that “the State is agreeing that [Harper] will
receive probation.” In response, the prosecutor proffered that he
and Harper’s previous attorney “never talked about probation
being agreed upon,” and that if there had been an agreement for
probation, any such agreement “would have been in the plea
form.” At the conclusion of the arguments, the court denied
Harper’s motion, noting that not only had it “told [Harper] . . .
that prison was a potential here,” but that Harper had “himself
volunteered that he knew that this [plea] could put him in
prison.” The court also observed that Harper had filed the
motion “only after he [found] out he ha[d] a prison
recommendation [from AP&P], which is not a legitimate reason
to withdraw a plea.”

¶8 A few months later, after another change of counsel,
Harper appeared at a hearing at which, among other things, the
court was to determine Harper’s sentence on the stalking charge.
At the beginning of that hearing, Harper pled guilty to one class
A misdemeanor count of assault by prisoner related to his
actions upon being arrested for custodial interference. Later
during that same hearing, the court heard argument regarding
Harper’s sentence on the stalking charge, and Harper’s new
attorney offered several reasons why Harper should be afforded
the opportunity of probation, including that the language of the
plea agreement appeared to indicate that probation would be
part of the sentence. The State, a representative of Ex-Girlfriend,
and AP&P all urged the court to send Harper to prison. After

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 State v. Harper

considering the arguments, the court sentenced Harper to a one-
to-fifteen-year prison term on the stalking charge.

ISSUES AND STANDARDS OF REVIEW

¶9 Harper now appeals, and asks us to consider two issues. 2
First, he challenges the district court’s decision to deny his
motion to withdraw his guilty plea. “We review the denial of a
motion to withdraw a guilty plea under an abuse of discretion
standard, incorporating a clear error standard for findings of fact
and reviewing questions of law for correctness.” State v. Magness,
2017 UT App 130, ¶ 16, 402 P.3d 105.

¶10 Second, he asserts that his attorney rendered ineffective
assistance by not asking the State to “clarify[] [its] position for
the plea bargain.” “When a claim of ineffective assistance of

2. In addition to the two issues identified here, Harper also raises
another issue in an appeal filed in a different case, the one in
which he pled guilty to stalking Ex-Wife. In that appeal, which
was consolidated with his appeal from his conviction for
stalking Ex-Girlfriend, he initially asserted that the district court
abused its discretion by revoking his probation and imposing
the original suspended prison sentence. In his appellate brief,
however, he acknowledges that, given the wide discretion
afforded district courts in making decisions regarding probation
revocation, “[t]he court’s [probation revocation] sentence . . .
cannot be legitimately deemed to be legally unreasonable or
excessive under governing law.” Accordingly, Harper has
effectively withdrawn his challenge to the district court’s
decision to revoke his probation in the case involving Ex-Wife,
and we therefore affirm the district court’s final probation
revocation and sentencing order in that case.

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 State v. Harper

counsel is raised for the first time on appeal, 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.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336
P.3d 587 (quotation simplified).

ANALYSIS

¶11 In addition to taking issue with the merits of Harper’s two
arguments, the State also asserts that this court lacks jurisdiction
to consider them. Accordingly, before examining the merits of
Harper’s arguments, we must determine whether they are
properly presented for our review.

A

¶12 Both of Harper’s claims challenge the propriety of his
plea, and on both claims Harper’s requested remedy is that he be
allowed to withdraw his plea. With the first claim—that the
court abused its discretion in denying Harper’s motion to
withdraw his plea—it is self-evident that Harper is challenging
the propriety of his plea. But even the second claim—for
ineffective assistance—is grounded in Harper’s dissatisfaction
with the propriety of his plea: in his brief, Harper asserts that it
was the State’s lack of clarity as to the terms of the agreement,
coupled with his own attorney’s allegedly ineffective assistance,
that led to entry of the plea, and he asserts that, as a result, he
should now be allowed “to withdraw his guilty plea and to
proceed to trial.”

¶13 The Utah Legislature has enacted a statute (the Plea
Withdrawal Statute) that governs the withdrawal of a
defendant’s plea. Under the terms of that statute, a guilty plea
“may be withdrawn only upon leave of the court and a showing

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 State v. Harper

that it was not knowingly and voluntarily made.” Utah Code
Ann. § 77-13-6(2)(a) (LexisNexis 2017). Any request to withdraw
such a plea “shall be made by motion before sentence is
announced.” Id. § 77-13-6(2)(b). And “[a]ny challenge to a guilty
plea not made” prior to sentencing “shall be pursued” in a post-
conviction proceeding. Id. § 77-13-6(2)(c).

¶14 Our supreme court has held that, by requiring defendants
to seek withdrawal of guilty pleas prior to sentencing, the Plea
Withdrawal Statute “establishes a standard of preservation” and
“imposes a strict sanction of waiver that is not subject to” the
common-law exceptions to our preservation doctrines, including
plain error or ineffective assistance of counsel. See State v. Rettig,
2017 UT 83, ¶ 34, 416 P.3d 520 (quotation simplified); see also
State v. Allgier, 2017 UT 84, ¶¶ 26, 28, 416 P.3d 546 (stating that
the Plea Withdrawal Statute “does not allow defendants to work
around [its procedural] bar through the exceptions to
preservation,” and that when a defendant fails to seek
withdrawal of a plea before sentencing, that defendant “forfeit[s]
his right to a direct appeal” and must pursue any unpreserved
challenges in a post-conviction proceeding). And the court
recently clarified that “the Plea Withdrawal Statute’s
preservation rule applies to all plea challenges made after
sentencing, even where a defendant has made an otherwise
timely plea-withdrawal request.” See State v. Badikyan, 2020 UT 3,
¶ 20, 459 P.3d 967. Thus, the Plea Withdrawal Statute, combined
with long-standing preservation doctrines, operates to prevent a
defendant from raising, on direct appeal, new grounds for
withdrawal of a plea—even by means of plain error review or
claims for ineffective assistance of counsel—that were not
brought to the attention of the court prior to sentencing. See id.
¶¶ 21–22; Allgier, 2017 UT 84, ¶ 25; Rettig, 2017 UT 83, ¶ 34.

¶15 We agree with the State that, pursuant to these principles,
Harper’s second claim—that he should be allowed to withdraw

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his plea because his attorney was ineffective for failing to clarify
the terms of the plea agreement prior to sentencing—is not
properly presented for review on direct appeal. Harper did not
bring this issue to the attention of the court prior to sentencing,
and therefore cannot properly raise this issue on direct appeal,
even by means of a claim for ineffective assistance of counsel.
Under the terms of the Plea Withdrawal Statute, any such claim
must be brought, if at all, in a post-conviction proceeding.

¶16 We are, however, not persuaded that the same is true
with regard to Harper’s first claim—that the district court
abused its discretion in denying Harper’s motion to withdraw
his plea. Harper filed a timely motion for withdrawal of his plea,
which the district court denied. The State asserts that the issues
Harper is raising now are not the same as the issues Harper
brought to the attention of the district court in connection with
his plea withdrawal motion, and that, under Badikyan, Harper’s
appellate claims are unpreserved. After reviewing the record,
however, we do not perceive a meaningful distinction, for
preservation purposes, between the issues Harper raised below
and the issues Harper raises here.

¶17 At the hearing on Harper’s motion to withdraw his plea,
Harper’s attorney argued that Harper should be able to
withdraw his plea because his previous counsel had advised
Harper “that he would get probation if he pled as charged.”
Harper’s attorney also pointed to the language of the plea
agreement—providing that the State would agree to a sentence
reduction if Harper “compl[ied] 100% with all terms and
conditions of AP&P probation”—and asserted that Harper
understood that language to mean that the State would support
a sentence including probation, because that language “impl[ies]
to someone, especially not legally trained,” that “the State is
agreeing that [Harper] will receive probation.”

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 State v. Harper

¶18 And, as we understand it, Harper’s first claim on appeal
rests on those same contentions. Harper believes that the district
court erred in denying his motion precisely because he thought
he would get probation by entering a guilty plea, and he ascribes
that mistaken belief to the language of the plea agreement itself,
which he argues led him to think that the State had agreed to
support a sentence that included probation. We acknowledge the
State’s point that Harper never argued to the district court that
“the plea agreement actually contained an enforceable
agreement that the prosecutor would recommend probation,”
and we agree with the State that Harper could perhaps have
been more precise in the arguments he made to the district court.
But before both courts, Harper advanced the general argument
that the language of the plea agreement indicated that the State
would support a sentence of probation, and that he should be
allowed to withdraw his plea if that were not going to be the
case. Based on our review of the record, and our interpretation
of Harper’s first claim on appeal, we conclude that Harper
adequately preserved this claim for our review.

¶19 Thus, Harper’s ineffective assistance of counsel claim is
not properly presented for our review, and therefore we do not
further discuss it. But Harper’s first claim is preserved, and we
therefore proceed to address the merits of that claim.

B

¶20 On the merits, Harper’s argument is premised on the
contention that the plea agreement he signed included the State’s
agreement that Harper would be afforded the privilege of
probation, and that he would not—at least not immediately—be
sentenced to prison. As he puts it, “[p]robation was part of the
plea bargain, as agreed to by the State.” Proceeding from
this premise, Harper asserts that the district court abused
its discretion by denying his motion to withdraw after it

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became plain that Harper would likely not be afforded the
privilege of probation. We reject Harper’s argument, for several
reasons.

1

¶21 As an initial matter, to the extent Harper is asserting that
the plea agreement included some sort of ironclad guarantee
that his sentence would include probation, that assertion is
without merit. The agreement was between Harper and the
State—the district court was, of course, not a party. Our rules of
criminal procedure provide a mechanism by which parties can
seek the district court’s input about a recommended disposition
prior to entry of a plea. See Utah R. Crim. P. 11(i) (allowing a
district court to review a “tentative plea agreement” and
“indicate to the prosecuting attorney and defense counsel,” prior
to final entry of the plea, “whether the proposed disposition will
be approved”). But the parties did not avail themselves of that
procedure in this case, and did not ask the district court, prior to
entry of the plea, to sign off on the plea or on any recommended
sentence. Indeed, at the plea hearing, Harper clearly expressed
an understanding that “the penalty of this guilty plea could . . .
put [him] in prison,” and the district court informed Harper that
it could sentence him to prison even though “something less
may be recommended.”

¶22 Harper’s plea did not include a guarantee of
probation. Whatever the meaning of the language in the plea
agreement, the court retained the discretion to impose a
prison sentence upon Harper, and Harper was well aware of
that fact when he entered his plea. We therefore construe
Harper’s arguments about the language of the plea agreement to
be aimed at establishing an obligation on the part of the State
to recommend or otherwise support a sentence that
included probation.

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 State v. Harper

2

¶23 On that point, Harper has not carried his burden of
demonstrating that the language of the plea agreement includes
the State’s agreement to recommend a sentence including
probation. See State v. Hummel, 2017 UT 19, ¶ 82, 393 P.3d 314
(noting that the appellant “bears the burden of proof on
appeal”); cf. State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448
(“Utah courts place the initial burden on the appellant, not on
the state, to produce some evidence that the prior conviction was
improper.” (quotation simplified)). The operative language in
the plea agreement is as follows: “The State agrees to a two-step
76-3-402 reduction if [Harper] compl[ies] 100% with all terms
and conditions of AP&P probation.” Harper interprets this
language as an obligation on the part of the State to “keep its
word” and “agree[] to probation.” The State, on the other hand,
asserts that it merely promised to “agree to a two-step reduction
if the [district] court had decided to grant probation” and Harper
successfully completed it.

¶24 Because a plea agreement is “essentially a contract”
between a defendant and the State, State v. Francis, 2017 UT 49,
¶ 11, 424 P.3d 156 (quotation simplified), we resolve most
disputes about the meaning of a plea agreement’s terms by
applying general principles of contractual interpretation, see
Hattrich v. State, 2019 UT App 142, ¶ 18, 449 P.3d 929 (“We apply
contract principles when interpreting plea agreements.”). Under
those principles, we “generally begin” our inquiry “by looking
first to the plain language” of the agreement, id. (quotation
simplified), because the plain language of contracts is usually the
best indication of the intent of the drafters, see Mind & Motion
Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994
(“[T]he best indication of the parties’ intent is the ordinary
meaning of the contract’s terms.”). In criminal cases, however,
“we do not strictly adhere to the plain meaning rule” to interpret

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a plea agreement; rather, “courts are particularly willing to
identify ambiguities in plea agreements because of the
significant constitutional rights the defendant waives by
entering a guilty plea.” See State v. Terrazas, 2014 UT App 229,
¶ 27, 336 P.3d 594 (quotation simplified).

¶25 If the plain language of a contract is unambiguous, it may
be interpreted as a matter of law by the court, without resort to
extrinsic evidence as to its meaning. See Café Rio, Inc. v. Larkin-
Gifford-Overton, LLC, 2009 UT 27, ¶ 25, 207 P.3d 1235. If the
language is ambiguous, then a court should examine extrinsic
evidence as to the parties’ intentions. See Daines v. Vincent, 2008
UT 51, ¶ 25, 190 P.3d 1269. If extrinsic evidence is unavailable or
does not serve to illuminate the parties’ intent, then certain tie-
breaking principles come into play, such as the rule that
contracts are generally to be construed against their drafter. See
Gillmor v. Macey, 2005 UT App 351, ¶ 38 n.16, 121 P.3d 57 (stating
that the construe-against-the-drafter rule “only comes into play
as a kind of tie-breaker, used as a last resort by the fact-finder
after the receipt and consideration of all pertinent extrinsic
evidence has left unresolved what the parties actually intended”
(quotation simplified)). One such tie-breaking rule applicable in
criminal cases is the principle that “[a]ny ambiguities in a plea
agreement in a criminal case are construed against the
government.” See 21 Am. Jur. 2d Criminal Law § 617 (2020); see
also State v. Patience, 944 P.2d 381, 387 (Utah Ct. App. 1997)
(“Both constitutional and supervisory concerns require holding
the government to a greater degree of responsibility than the
defendant for imprecisions or ambiguities in plea agreements.”
(quotation simplified)).

¶26 In this case, especially given the rule requiring us to
liberally identify ambiguities in plea agreements, see Terrazas,
2014 UT App 229, ¶ 27, we conclude that the operative language
of the plea agreement is ambiguous. Although the State’s

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interpretation strikes us as somewhat more plausible on its face,
we are unable to say that Harper’s interpretation is
unreasonable. And when each of the “possible interpretations”
of a plea agreement “are reasonable, we consider [it] to be
ambiguous.” State v. Samul, 2018 UT App 177, ¶ 14, 436 P.3d 298;
see also Brady v. Park, 2019 UT 16, ¶ 55 & n.45, 445 P.3d 395
(“Where we conclude that either of the contract interpretations
could reasonably have been what the parties intended, we will
not substitute our judgment for that of the parties by choosing
what we believe to be the better of the two interpretations.”).

¶27 But Harper made no effort before the district court
to identify and gather any extrinsic evidence that might
shed light on the intentions of the parties. He submitted a
sworn declaration of his own, but that declaration contains
no indication of what the drafters of the plea agreement
intended the operative language to mean; instead, he stated
only that he “thought he would be placed on probation” and
that his previous attorney told him he would get probation,
observations that are as consistent with the State’s interpretation
of the operative language as they are with his own. And he did
not submit an affidavit or declaration from his previous
attorney, the individual who negotiated the agreement with
the prosecutor.

¶28 On the other hand, the prosecutor who negotiated the
agreement was present at the hearing on Harper’s motion, and
he told the court that he and Harper’s previous lawyer “never
talked about probation being agreed upon,” and that if there had
been any such agreement “[i]t would have been in the plea
form.” The State correctly notes that this statement by the
prosecutor represents “the only proffer of relevant extrinsic
evidence” placed before the district court as to what the drafters
of the operative language intended the agreement to mean.

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¶29 We are hesitant to apply the tie-breaking rule—that
ambiguities in plea agreements are construed against the State—
when Harper has done nothing to present applicable extrinsic
evidence of the parties’ intent, and where the only piece of
relevant extrinsic evidence in the record—the prosecutor’s
proffer—points in the other direction. In this situation, Harper
has not carried his burden of persuading us that the operative
language of the plea agreement means what he says it means.

3

¶30 But even if Harper were able to demonstrate that the
relevant language of the plea form indicates that the State was
obligated to recommend probation, Harper would still not
prevail here, because circumstances changed following
negotiation of the plea agreement: Harper was again arrested
and charged with two felony counts of assault by prisoner, and
pled guilty to one such count, reduced to a misdemeanor. We
agree with the State that Harper’s subsequent actions relieved
the State of any obligation it might have had, at the time it
entered into the plea agreement, to advocate that probation
should be a part of Harper’s sentence.

¶31 “When a defendant, as a result of a plea agreement,
pleads guilty in exchange for a promise by the state to give a
particular sentencing recommendation, there is an implied
promise by the defendant that the circumstances under which
the bargain was made will remain substantially the same.” State
v. Tyler, 84 P.3d 567, 570 (Idaho Ct. App. 2003); see also State v.
Pascall, 358 N.E.2d 1368, 1369 (Ohio Ct. App. 1972). “The
commission of a crime subsequent to entering a plea agreement
and before sentencing is a change in circumstances amounting to
a breach of that implied promise and is sufficient to excuse the
state from fulfilling its promised recommendation.” Tyler, 84
P.3d at 570; see also State v. Delacruz, 144 F.3d 492, 494–95 (7th

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 State v. Harper

Cir. 1998) (holding that the government was not obligated to
abide by a previous promise to recommend a lenient sentence
due to the defendant’s post-agreement but pre-sentencing
criminal activity); cf. State v. Patience, 944 P.2d 381, 387 (Utah Ct.
App. 1997) (noting that the State may withdraw from a plea
agreement if “the defendant has breached the agreement”).

¶32 By pleading guilty to one count of assault by prisoner,
Harper admitted that he had committed an additional crime
after the plea agreement was executed. Accordingly, whatever
obligation the State might have had to recommend probation—
and, as noted, we are not at all convinced that any such
obligation existed—was no longer in effect after Harper was
convicted of a new offense committed after entering into the plea
agreement. For these reasons, the district court acted within its
discretion by denying Harper’s motion to withdraw his plea.

CONCLUSION

¶33 The district court did not abuse its discretion in denying
Harper’s motion to withdraw his guilty plea. And Harper’s
claim for ineffective assistance of counsel must be brought, if at
all, in a post-conviction proceeding.

¶34 Affirmed.

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