State v. Dastrup

Defendant entered a guilty plea to ten counts of forgery, all second-degree felonies, in violation of Utah Code Ann. § 76-6-501 (1990), and eight counts of theft, one third-degree felony and seven second-degree felonies, in violation of Utah Code Ann. §76-6-404 (1990). Defendant subsequently attempted to set aside his guilty plea and resulting conviction by contending that the trial court did not strictly comply with Rule 11(5) of the Utah Rules of Criminal Procedure as required by State v. Gibbons,740 P.2d 1309 (Utah 1987). His motion was denied. Defendant now appeals the denial of his motion to set aside his guilty plea. We reverse and remand.

When defendant originally entered his guilty plea, the trial court conducted a colloquy with defendant on the record regarding his desire to enter his plea. During that colloquy, the court addressed each of defendant's constitutional rights enumerated in Rule 11(5). The trial court did not, however, ask the defendant on the record if he knew that by pleading guilty he was waiving those rights.

Defendant asserts that the trial court's failure to ask him specifically if he knew that he was waiving his rights rendered his plea unacceptable under Rule 11(5).¹ Rule 11(5) provides in pertinent part:

The court . . . may not accept the plea until the court has found:

. . . .

(c) the defendant knows he has rights against compulsory self-incrimination, to a jury trial, and to confront and cross-examine in open court the witnesses against him, and that by entering the plea he waives all of those rights;

Utah R.Crim.P. 11(5) (emphases added). Defendant makes this claim even though in his affidavit he affirmatively acknowledged that he knew he was waiving each of his rights enumerated in Rule 11(5)(c).

Recently, this court held in State v. Smith, 812 P.2d 470,477 (Utah App.), petition for cert. filed, 167 Utah Adv.Rep. 25 (Utah 1991), and State v. Trujillo-Martinez, 814 P.2d 596 (Utah App. 1991), that a trial court could consider both the colloquyand the affidavit in determining whether the defendant's plea was being entered in strict compliance with Rule 11(5).² Subsequently, however, the Utah Supreme *Page 596 Court's decision inState v. Hoff, 814 P.2d 1119 (Utah 1991) seems to have foreclosed that interpretation. In Hoff, the supreme court stated that Gibbons requires that the trial court "personally establish that the defendant's guilty plea is truly knowing and voluntary," and that the trial court "establish on the record that the defendant knowingly waived his or her constitutional rights and understood the elements of the crime." Hoff, 814 P.2d at 1122. Even though the affidavit in this case clearly and unequivocally states that the defendant has knowingly waived his constitutional rights, there is no such statement "on the record." Given the language in Hoff, the trial court must base its findings solely on the colloquy, without considering any statements made in the affidavit.

Although the better approach may be to consider the colloquy and the affidavit in unison since both constitute evidence properly before the court, the supreme court has precluded us from taking such an approach. We are therefore constrained to hold that the plea was defective because the trial court failed to address specifically with the defendant, in open court and "on the record," each and every provision of Rule 11(5). We must do so even though the defendant affirmatively stated in his affidavit that he knew he was waiving his rights.

We reverse the trial court's denial of defendant's motion to set aside his guilty plea and remand to the trial court for further proceedings consistent herewith.

JACKSON, J., concurs.

¹ Defendant also claims that his guilty plea was not voluntary, and that he did not understand the nature and elements of the offenses to which he pleaded guilty. Inasmuch as we reverse because of the trial court's failure to specifically address each and every provision of Rule 11(5)(c) with the defendant on the record, we need not consider these allegations of error.

² Rule 11(5) does not mandate any colloquy "on the record." In fact, no such colloquy is ever mentioned in Rule 11(5). Strict compliance with the rule, therefore, only requires that there be evidence before the trial court to support each of the findings enumerated. This is the underlying reasoning of both Smith andTrujillo-Martinez. The requirement that the findings be based upon statements made by the defendant "on the record" during a colloquy and not upon statements made in an affidavit is a requirement created by the supreme court in Gibbons. In other words, there are two requirements arising out of Gibbons: first, that there be compliance with the provisions of Rule 11(5), Gibbons, 740 P.2d at 1313; and second, that the trial court conduct an adequate colloquy with the defendant on the record before accepting the plea. Id. at 1314. It is therefore logically inappropriate to state that the failure to conduct an adequate colloquy is a failure to comply strictly with Rule 11(5). The failure to conduct an adequate colloquy is correctly characterized as a violation of the common law rule established in Gibbons.