State v. Casey

WILKINS, Justice,

concurring:

148 I concur in the result reached in the majority opinion. However, I would affirm the trial court's action only because the conflict between two constitutional principles gives us no other choice. At the time the motion was made, however, the trial court could have, and under the mandate of our constitution should have, granted M.R.'s motion for a misplea.

144 I fully agree with the analysis set forth in the majority opinion leading to the conclusions that MR. was entitled to appellate review of the district court's adverse rulings, and that, as a victim of crime, he had both a constitutional and statutory right to be heard at defendant's change of plea hearing. I also agree fully that MR., in informing the prosecutor of his desire to be heard, did everything necessary to properly invoke his right. However, I believe that when the trial court was finally informed of M.R.'s desire to be heard, it was clearly insufficient for the trial court to "informally" reopen the change of plea hearing and "consider" M.R.'s concerns before summarily reaffirming the "accepted" plea. Doing so merely compounded the error invited by the prosecution in failing to promptly inform the court of M.R.'s initial request to be heard at the change of plea hearing.

1 45 As we today hold, M.R. clearly had a constitutional right to speak prior to the acceptance of the change of plea in this case. *767Under our decision in State v. Ostler, 2001 UT 68, ¶ 10, 31 P.3d 528, defendant's plea had not yet been finally accepted at the time the trial court became aware of M.R.'s desire to be heard on the matter. The correct course would have been for the trial court to reopen the hearing, after notice to all concerned.

146 The constitutional provisions granting M.R. his right to be heard, however, also limit this right. Subsection (2) of the Vie-tims' Rights Amendment, Article I, Section 28 of the Utah Constitution, specifically prohibits construing the rights afforded MR. in such a way as to provide "relief from any criminal judgment." The defendant's plea, once accepted by the court and sentence imposed, is a criminal judgment. Consequent ly, onee the trial court accepted defendant's plea and entered the judgment of sentence on the plea, M.R.'s rights as a victim could not result in the "misplea" MR. sought. Only while the plea was still not final, that is, prior to the entry of sentence, could M.R.'s motion for misplea have been granted on the basis of M.R. having been denied his constitutional right to speak at the change of plea hearing.

T47 A second difficulty is created by the provisions of the Rights of Crime Victims Act, Utah Code Ann. § 77-88-11(2)(1999), that authorize appellate review of an adverse ruling by the trial court on M.R.'s motions, but specifically provide that no such appeal "shall constitute grounds for delaying any criminal ... proceeding." § 77-38-11(2)(b). When juxtaposed with the rights of the criminal defendant to a speedy trial and the necessity to move forward with the criminal process despite an otherwise valid appeal by a victim, appellate relief for MR. is a practical impossibility. Moreover, the same statute limits M.R.'s remedies to injunctive relief, declaratory relief, and writ of mandamus. § 77-38-11(1)(@). If the eriminal action proceeds, and if the victim is denied his or her constitutional right to address the court, the victim has little hope of a meaningful remedy. While the criminal proceeding moves forward, the victim denied rights may seek only an injunction or writ of mandamus that will preserve the right to speak if such an appeal can be filed, perfected, heard, and decided before entry of the criminal judgement. This will often not be the case. This was clearly not the case in M.R.'s situation.

148 So, our hands are tied by the same constitutional and statutory provisions that gave M.R. his right to be heard in the first place. We cannot order the plea "undone" once the sentence and judgment have been entered by the trial court. We cannot impose any corrective action on the failure of the prosecutor to inform the court of the request to speak, or the failure of the trial court to fully reconsider the change of plea, with all due formality, thereby according M.R. his constitutional right to actually be heard.

[ 49 As it works in practice, the right of a victim to be heard at a change of plea hearing is fragile at best, and may be made illusory by the intentional or unintentional mishandling of the situation by the prosecutor or the trial court, all without meaningful remedy. Perhaps the legislature may find it wise to reconsider the provisions of the statute addressing appellate review of the denial of a victim's request to assert the rights granted by the Victims' Rights Amendment. There may be other cireamstances under which those rights may be just as easily and negligently denied as were M.R.'s in this case.