dissenting:
I dissent. I cannot agree that the trial court abused its discretion in denying defendant’s motion to 'withdraw his guilty plea.
The majority concedes that Holland did not lack a rational and factual understanding of the proceedings against him but then erroneously concludes that at the time he entered his guilty plea, he “lacked the ability to consult with his attorney in a reasonable and rational fashion,” as required by Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321, 330 (1993). The majority relies entirely on the expert testimony which was before the trial court but gives no weight to other evidence which supports the trial court’s finding of competency. In fact, as I will later point out, there is no evidence that Holland lacked the ability to consult with his lawyer with a reasonable degree of rational understanding.
Holland has spent most of his adult life in prison. He was first convicted of armed robbery in Florida, where he served five years. Following his release, he killed a man in Iowa, where he served another twenty-two years. After killing the victim in the instant case but prior to his arrest, he committed another murder in Idaho. This background of criminal conduct explains what he said to Detective James Bell, who transported Holland from Florida to Utah to stand trial. Bell testified that Holland told him:
He was tired of hurting people and tired of killing people. And if they ever let him back out of prison again, he would continue to kill people. And he needed it to stop, and the only way it was going to stop is if they were going to lock him up and keep him locked up. And he knew [that a sentence of] Life was not [going] to keep him [in prison] for life. And the only way to resolve it was to execute him.
He told Bell that he intended to plead guilty to the Utah murder charge. When Bell suggested that people would try to talk him out of pleading guilty, he responded: “They can try, but I am not going to talk to them. I’ll go back and I’ll plead guilty.” Bell further testified that during the trip, defendant was “very straightforward with his answers,” had no difficulty communicating, was very calm, did not appear to be impulsive, and did not exhibit “pressured speech.” He showed no signs of depression, and in response to a question, he stated that he was not suicidal. With that background of criminal conduct, it should not be surprising or in any way indicate incompetency that Holland concluded he could not control himself outside of prison.
The majority relies heavily on the testimony of Dr. Lebegue that although Holland was able “to comprehend the nature of the proceedings against him” and “the punishment specified for the offense charged,” he was “unable to assist his attorney in his defense.” However, Dr. Lebegue’s opinion rested largely upon Holland’s “immediate desire to plead guilty to a capital offense.” His “hasty and fairly pressured and impulsive decision to proceed” evidenced “his impaired ability to consult with counsel.” The trial court, however, was not obliged to agree with Dr. Lebe-gue’s conclusion that Holland’s decision to plead guilty was impulsive, hasty, or not thoughtfully reasoned. At the time the trial court received Holland’s guilty plea, the court told him:
I don’t want to rush you. If you want some time to think about it, just say so. Are you prepared at this time to make a decision, or do you wish to wait and confer with counsel and get back to the court?
Holland replied: “I have already made the decision. I have thought about it. I will just go with the court, I don’t need a jury.” This statement comports entirely with what he told Detective Bell, that he had thought about and decided to plead guilty even prior to his arrest in Florida. Furthermore, pleading guilty to first degree murder (now called aggravated murder) does not raise any inference of lack of competency. The defendant in State v. Parsons, 781 P.2d 1275, 1276 (Utah 1989), similarly pleaded guilty to first degree murder, and a jury imposed the death penalty. In a ruling on a subsequent petition for habeas corpus, we held that the defendant had not received ineffective assistance of counsel. Parsons v. Barnes, 871 P.2d 516, 524-25 (Utah), cert. denied, — U.S. -, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994).
*438The trial court also had the opportunity to observe Holland on several occasions when he was in court. On those court appearances, Holland’s answers were not limited to “yes, sir” and “no, sir.” For example, he had a lengthy colloquy with the court at the first penalty hearing when he objected to his own counsel’s motion for a continuance for several weeks to give Dr. DeCaria more time to examine and evaluate him. On that occasion, defendant not only addressed the court at length, but discussed his objection with his counsel and Dr. DeCaria. In addition, at the time of entering his plea defendant read and signed an affidavit explaining in great detail the rights he was waiving and the consequences of his plea. He indicated to the court that he had read the affidavit, understood it, and signed it knowingly and willingly-
None of the three experts upon whom the majority relies testified as to any instance where Holland lacked the ability to consult with his attorney in a reasonable and rational fashion. Nor did his attorney who made the motion to allow Holland to withdraw his guilty plea ever testify or produce any evidence to that effect. There was no evidence that defendant was factually or rationally out of touch with the realities of the criminal proceedings. Unlike the defendant in State v. Lafferty, 749 P.2d 1239, 1246 (Utah 1988), who operated within a paranoid delusional system, and the defendant in Dusky v. United States, 295 F.2d 743, 749 (8th Cir.1961), cert. denied, 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536 (1962), who suffered from schizophrenia and visual hallucinations, Holland exhibited none of those characteristics. He was always well rooted in reality.
As the second ground for allowing Holland to withdraw his guilty plea, the majority finds that his attorney, Elliot Levine, rendered ineffective legal assistance. The majority somehow comes to that conclusion after acknowledging:
[I]t is unclear from the record before us whether Levine carefully analyzed the law and the facts and laid out the options for Holland prior to Holland’s initial guilty plea hearing or whether he simply encouraged Holland to plead guilty to capital homicide on the basis of his own judgment that Holland was guilty of capital homicide.
With that statement, the majority then gratuitously assumes ineffectiveness without requiring any proof. The record is unclear as to what advice Levine gave Holland because no hearing was ever held to pursue that issue. We have always required defendants to produce evidence of ineffective assistance of counsel and have never assumed it as the majority does now. As mentioned earlier, we held in Parsons, 871 P.2d at 524-25, that counsel’s advice to plead guilty to a charge of first degree murder was not ineffective assistance.
No one disputes that Levine used poor judgment when in the Taylor ease he attempted to point to Holland as someone who deserved the death penalty while Taylor did not. I agree with the majority that that conduct breached his obligation of loyalty to Holland at a time when this appeal was pending in this court. The State wisely brought that breach to our attention, and we ordered Levine to withdraw as Holland’s counsel on appeal. State v. Holland, 876 P.2d 357, 361 (Utah 1994). However, that conduct could in no way have tainted or affected Levine’s advice to Holland when he entered the guilty plea several years earlier.
In conclusion, in view of all the facts, there is ample support to sustain the trial court’s denial of Holland’s motion to withdraw his guilty plea. There is evidence of Holland’s competency at the time he entered his plea. There is no evidence that at that time Levine rendered ineffective assistance to Holland. I would affirm the trial court.
ZIMMERMAN, C.J., concurs.