State v. Cuttler

2018 UT App 171

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
JAMES ROBERT CUTTLER SR.,
Appellee.

Opinion
No. 20170396-CA
Filed September 7, 2018

Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 121402748

Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellant
Emily Adams and Cherise M. Bacalski, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and KATE A. TOOMEY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 The State charged James Robert Cuttler Sr. with six first-
degree felonies, including rape of a child, sodomy upon a child,
and aggravated sexual abuse of a child. Due to a previous
conviction for sodomy upon a child, each count potentially
subjected Cuttler to an enhanced penalty of life in prison
without the possibility of parole. Cuttler ultimately agreed to
plead guilty to one count of rape of a child without the
enhancement, which carried a 25-years-to-life prison sentence.
Before sentencing, Cuttler moved to withdraw his guilty plea
and the district court granted that motion after an evidentiary
State v. Cuttler

hearing. The State appeals. We agree with the State that the
district court exceeded its discretion in granting Cuttler’s motion
to withdraw his guilty plea, and we therefore reverse.

BACKGROUND

¶2 In October 2012, a seven-year-old child reported to
authorities that Cuttler engaged in sexual intercourse with her.
Soon after the report, the State charged Cuttler with two counts
each of rape of a child, Utah Code Ann. § 76‑5‑402.1 (LexisNexis
2012); sodomy on a child, id. § 76-5-403.1; and aggravated sexual
abuse of a child, id. § 76‑5‑404.1. Because Cuttler has a prior
conviction of sodomy on a child, each of the six charges carried
the possibility of an enhanced penalty, subjecting Cuttler to life
in prison without the possibility of parole. See id.
§§ 76‑5‑402.1(2)(b)(ii), -403.1(2)(b)(ii), -404.1(5)(c).

¶3 The State notified Cuttler of its intent to introduce
evidence of his prior conviction for sexually molesting two
different victims in another state, but the district court concluded
that the evidence would be excluded at trial. On interlocutory
appeal, the Utah Supreme Court reversed the district court’s
order. See generally State v. Cuttler, 2015 UT 95, 367 P.3d 981.
Pending disposition of the evidentiary issue in the supreme
court, Cuttler allegedly fled from Utah while on pretrial release,
resulting in the State filing additional charges against him.

¶4 Following the supreme court’s decision and the new
charges, the State offered Cuttler a plea deal for global resolution
of all charges. It offered to let him plead guilty to one count of
rape of a child in exchange for the State’s agreement to remove
the enhanced life-without-parole penalty on that charge, to
dismiss the remaining five charges, and to dismiss the separate
case for fleeing the jurisdiction. Cuttler agreed to these terms. In
the written plea agreement, Cuttler acknowledged that “[he] did

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have sexual intercourse with a child under the age of 14,” which
constituted a first-degree-felony rape of a child and carried a
punishment of “25 years to life.”

¶5 At the plea hearing, the prosecutor informed the court
that Cuttler intended to plead guilty to rape of a child,
identifying it as “Count I without the enhancement. That is a
mandatory 25 to life, however.” During the plea colloquy, the
district court identified the sentence as “25 years to life . . . in the
Utah State Prison” and asked Cuttler if he understood that the
charge carries a “mandatory 25 years to life” sentence. Cuttler
responded “Yes.” The district court also stated that the charge
required mandatory imprisonment, which Cuttler
acknowledged he understood. At the conclusion of the hearing,
the court found Cuttler to be “proceeding voluntarily,
knowingly[,] and with full understanding,” and it subsequently
endorsed his guilty plea.

¶6 Prior to sentencing, conflict counsel appeared on behalf of
Cuttler and moved to withdraw his guilty plea, which motion
the State opposed. The district court held an evidentiary hearing
at which Cuttler and his prior Plea Counsel testified. 1 Cuttler
explained, “[W]e discussed 25 to life, not mandatory 25 to life.”
Cuttler could not recall whether his Plea Counsel had ever used
the word “mandatory” in their discussions of the sentence or if
counsel had advised him that the judge would have the ability to
reduce the sentence below 25 years. Cuttler argued that his plea
was not knowingly made, because “he did not understand that
the Court lost discretion to reduce his sentence below 25 years in
prison.”

1. Two attorneys represented Cuttler at the plea hearing. For
convenience, we will refer to them collectively as Plea Counsel.
We note, however, that only one testified at the plea withdrawal
hearing.

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¶7 The district court ultimately agreed that Cuttler’s plea
was not made knowingly. Specifically, the court determined
that, by entering the plea,

[Cuttler] was subjecting himself to a mandatory
sentence that included time in the Utah State
Prison for a term of 25 years to life. However, he
did not know that he was subjecting himself to a
minimum mandatory sentence of 25 years. He
understood that the sentence was mandatory, but
in no part of the record was he made aware that
the sentence was a minimum mandatory sentence
that took away all discretion from the judge or the
State of Utah Board of Pardons.

The district court further concluded that it fully complied with
rule 11 of the Utah Rules of Criminal Procedure in taking the
plea. The State timely appealed. See Utah Code Ann.
§ 77‑18a‑1(3)(c) (LexisNexis 2017).

ISSUE AND STANDARDS OF REVIEW

¶8 The State contends that the district court erroneously
granted Cuttler’s motion to withdraw his guilty plea. We review
the district court’s resolution of a motion to withdraw a guilty
plea for abuse of discretion, and we review the district court’s
related findings of fact for clear error. State v. Beckstead, 2006 UT
42, ¶ 7, 140 P.3d 1288. The district court abuses its discretion
when its decision is “beyond the limits of reasonability,” State v.
Olsen, 860 P.2d 332, 334 (Utah 1993) (quotation simplified), or
where the district court made a mistake of law, see State v.
Barrett, 2005 UT 88, ¶ 17, 127 P.3d 682. “Appellate courts must
also determine . . . whether the defendant actually understood
the charges, the constitutional rights, and the likely

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consequences of the plea and voluntarily chose to plead guilty.”
State v. Candland, 2013 UT 55, ¶ 16, 309 P.3d 230.

ANALYSIS

¶9 In this case, the State challenges the district court’s
decision to grant Cuttler’s motion to withdraw his guilty plea.
Particularly, the State asserts that the district court erred in
determining that the applicable sentence was a “minimum
mandatory sentence.” See Utah R. Crim. P. 11(e)(5). Because the
court concluded that the sentence to be imposed in this case
required a minimum mandatory period of incarceration, it
determined that Cuttler’s guilty plea was not entered
knowingly. That is, the district court concluded that, because
Cuttler never heard the words “minimum mandatory” uttered
during the plea hearing, Cuttler could not understand the
“minimum mandatory nature” of his sentence. See id. We first
consider the applicable sentence in this case, and then we review
the guilty plea and the district court’s authorization of
withdrawal of that plea.

I. The Applicable Sentence

¶10 Rape of a child, a first-degree felony, is “punishable by a
term of imprisonment of . . . not less than 25 years and which
may be for life.” Utah Code Ann. § 76-5-402.1(2), (2)(a)
(LexisNexis 2017). 2 Under the circumstances of this case,

2. The punishment is enhanced to life without parole if “the
defendant was previously convicted of a grievous sexual
offense.” Utah Code Ann. § 76-5-402.1(2)(b)(ii) (LexisNexis 2017).
Although the State originally charged Cuttler with
enhancements under this section, the State agreed to strike those
as part of the plea agreement.

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imprisonment is mandatory after conviction. Id. § 76-5-402.1(5)
(“Imprisonment under this section is mandatory. . . .”); 3 see also
id. § 76-3-406(1), (1)(f) (providing that “probation may not be
granted, the execution or imposition of sentence may not be
suspended, the court may not enter a judgment for a lower
category of offense, and hospitalization may not be ordered, the
effect of which would in any way shorten the prison sentence for
any person who commits . . . rape of a child”). 4 Consequently, by
pleading guilty, Cuttler subjected himself to a sentence of
mandatory imprisonment of 25 years to life. The written plea
agreement between the parties set forth the applicable
punishment for the crime of rape of a child. The district court
also explained, and confirmed that Cuttler understood, that
conviction for rape of a child would subject Cuttler to
mandatory imprisonment for 25 years to life.

II. The Guilty Plea

¶11 Having been informed of the applicable sentence, Cuttler
pleaded guilty to one count of rape of a child. A guilty plea is
valid “only if it is made ‘voluntarily, knowingly, and
intelligently, with sufficient awareness of the relevant
circumstances and likely consequences.’” State v. Alexander, 2012
UT 27, ¶ 16, 279 P.3d 371 (quoting Bradshaw v. Stumpf, 545 U.S.

3. We cite to the current version of the statute here because,
although this section has been modified, the language of this
provision has not changed.

4. We note that the legislature has made available an exception
to imprisonment in certain circumstances under which eligible
offenders can avoid mandatory imprisonment if particular
statutory requirements are met. See Utah Code Ann.
§§ 76‑5‑406.5, -402.1(4)(a). Cuttler was not eligible for this
exception.

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175, 183 (2005)); see also Utah Code Ann. § 77-13-6(2)(a)
(LexisNexis 2017) (“A plea of guilty . . . may be withdrawn only
upon leave of the court and a showing that it was not knowingly
and voluntarily made.”). Utah law requires that the district court
inform defendants of the direct consequences of a guilty plea,
“but not necessarily every collateral consequence of [the] plea.”
See State v. Smit, 2004 UT App 222, ¶ 29, 95 P.3d 1203 (quotation
simplified). A direct consequence of a guilty plea “is one that
will have a ‘definite, immediate and largely automatic effect on
the range of the defendant’s punishment’ such as lack of
eligibility for parole.” Id. (quoting Cuthrell v. Director, Patuxent
Inst., 475 F.2d 1364, 1366 (4th Cir. 1973)). A collateral
consequence is one that is discretionary and unrelated to the
length and nature of the sentence imposed on the basis of the
plea—“such as the possibility of a concurrent state sentence . . . ,
or the possibility of revocation of parole.” Id.

¶12 Before accepting a guilty plea, the court must advise
defendants of the constitutional rights they will be giving up and
explain the charges and direct consequences of pleading guilty.
“To aid district courts, . . . rule 11 of the Utah Rules of Criminal
Procedure . . . provides a roadmap for ensuring that defendants
receive adequate notice of their rights and for examining
defendants’ subjective understanding and intent.” State v.
Candland, 2013 UT 55, ¶ 14, 309 P.3d 230. Relevant to our review,
rule 11(e)(5) of the Utah Rules of Criminal Procedure requires
the court to ensure that “the defendant knows the minimum and
maximum sentence, and if applicable, the minimum mandatory
nature of the minimum sentence, that may be imposed for each
offense to which a plea is entered.” The court must explain and a
defendant must understand the penalty that will be imposed
upon conviction of the charged crime. The imposition of that
penalty is a direct consequence of pleading guilty.

¶13 Here, when considering whether to accept Cuttler’s guilty
plea, the district court progressed through the requirements of

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rule 11 in open court. The court also received a written plea
agreement supporting Cuttler’s guilty plea. This agreement
stated that Cuttler was pleading guilty to rape of a child, a first-
degree felony. Under the heading “Punishment Min/Max and/or
Minimum Mandatory,” Cuttler was notified that pleading guilty
subjected him to a sentence of “25 years to life.” In the plea
agreement, Cuttler further acknowledged:

I know the maximum sentence that may be
imposed for each crime to which I am pleading
guilty . . . . I know that by pleading guilty . . . to a
crime that carries a mandatory penalty, I will be
subjecting myself to serving a mandatory penalty
for that crime. I know my sentence may include a
prison term, fine, or both.

¶14 The district court accepted Cuttler’s guilty plea,
apparently satisfied that “[h]e knew that he was subjecting
himself to a mandatory sentence that included time in the Utah
State Prison for a term of 25 years to life.” The direct penal
consequence of Cuttler’s guilty plea for rape of a child included
exactly that which was explained to him: a mandatory,
indeterminate “term of imprisonment of . . . not less than 25
years and which may be for life.” Utah Code Ann.
§ 76‑5‑402.1(2), (2)(a) (LexisNexis 2017).

III. The Plea Withdrawal

¶15 Despite finding that Cuttler understood the applicable
sentence and that “the Court’s colloquy was comprehensive and
followed the Rule 11 plea requirements,” the district court set
aside Cuttler’s guilty plea. It determined that because no one
clarified for Cuttler during the plea colloquy that his 25-years-to-
life sentence was a “minimum mandatory sentence,” “Cuttler
could have been left with the reasonable understanding that
even though there was a mandatory sentence, the Court or the

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Board of Pardons retained some discretion to reduce, but not
eliminate, that mandatory sentence.” 5 The court concluded that
Cuttler met his burden and demonstrated that his plea was not
knowingly made because he was not “made aware that the
sentence was a minimum mandatory sentence that took away all
discretion from the judge or the State of Utah Board of Pardons.”
The State asserts that the district court erred as a matter of law in
reaching this conclusion. We agree.

¶16 The court erroneously determined that Cuttler was
subject to a minimum mandatory term of imprisonment and
that, in order for his plea to be knowingly entered, the court was
required to advise Cuttler that the court lacked discretion to

5. Cuttler’s understanding that the court and the Board retained
discretion to reduce the minimum term is not challenged on
appeal, and we accordingly decline to disturb the district court’s
findings. We note, however, that the record reflects no
affirmative statement, passing comment, or suggestion, which
might have led Cuttler to develop this understanding. He
certainly did not bring it to the court’s attention at the change-of-
plea hearing. In any event, Cuttler explains that, when he
pleaded guilty, he simply “did not know what he did not know.
How could he?” See McAdams v. Town of Barnard, 2007 VT 61,
¶ 13 n.5, 936 A.2d 1310 (noting that the “conundrum of known
unknown roads brings to mind one of former Secretary of
Defense Donald Rumsfeld’s famous existential musings: ‘As we
know, there are known knowns. There are things we know we
know. We also know there are known unknowns. That is to say
we know there are some things we do not know. But there are
also unknown unknowns, the ones we don’t know we don’t
know’” (quotation simplified)). Cuttler appears to argue that
someone should have told him what he did not know he did not
know—and they did not.

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sentence Cuttler below the minimum term—25 years—set forth
in the statute. We first address the district court’s discretion to
deviate from the applicable sentence. Then, we consider whether
the Utah Board of Pardons and Parole (Board) retained
discretion to parole Cuttler before the minimum prison term has
been served.

A. The District Court’s Lack of Discretion to Sentence below
the Mandatory Prison Term

¶17 Under Utah’s indeterminate sentencing scheme, which
has been in place in some form since 1913, a sentencing court
“has no discretion in fixing the term of imprisonment. [It] simply
imposes the statutorily prescribed range of years, and the Board
of Pardons determines exactly how long the prisoner is to be
confined.” Labrum v. Utah State Board of Pardons, 870 P.2d 902,
907 (Utah 1993) (quotation simplified); see also Padilla v. Utah
Board of Pardons & Parole, 947 P.2d 664, 669 (Utah 1997)
(explaining that the district court has the power to sentence and
“must set an indeterminate sentence as provided by statute”); cf.
State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854 (explaining
that an illegal sentence generally occurs where the court lacks
jurisdiction, or “where the sentence is beyond the authorized
statutory range”). In accordance with our sentencing scheme, the
Utah Supreme Court has consistently held that “the power to
reduce or terminate sentences is exclusive with the Board.” State
v. Schreuder, 712 P.2d 264, 277 (Utah 1985) (citing cases),
superseded by statute on other grounds as stated in State v. Smith,
2014 UT 33, ¶ 14 & n.14–15, 344 P.3d 573. In other words, the
Board, not the district court, “determines the actual number of
years a defendant is to serve,” Labrum, 870 P.2d at 907 (quotation
simplified), because the Board “functions as a sentencing entity
and decides the term of incarceration,” id. at 908. Indeed, the
number of years a defendant will serve under an indeterminate
sentence “is left to the unfettered discretion of the board of
pardons, which performs a function analogous to that of the trial

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judge in jurisdictions that have a determinate sentencing
scheme.” Id. (quotation simplified).

¶18 To fairly inform Cuttler of the consequences of his guilty
plea to rape of a child, the district court was not required to first
notify him of the court’s inability to reduce the sentence below
the mandatory indeterminate range. As the State points out, “the
rape-of-a-child statute’s use of the ‘not less than’ language is
similar to the language used for other indeterminate sentences.”
Thus, the sentence to be imposed for a child rape conviction is
treated the same as any other indeterminate term, and the only
significant difference is the limit on the district court’s authority
to order probation or suspend the sentence rather than impose
the prison sentence. See supra ¶ 10. As noted, the district court
need not inform a defendant of every collateral consequence of a
guilty plea. See State v. Smit, 2004 UT App 222, ¶ 29, 95 P.3d 1203.
Indeed, this particular bit of information—the court’s lack of
discretion to reduce the sentence—is not a collateral or even
likely consequence of his guilty plea, but rather of no
consequence. Because the court properly informed Cuttler of the
likely consequences of his guilty plea, the court, at least initially,
correctly determined that his guilty plea was knowingly entered.
The court made a mistake of law, however, in concluding that, to
knowingly enter a guilty plea, Cuttler needed to understand that
the district court lacked any room for leniency with regard to the
minimum term of the indeterminate sentence.

B. The Board’s Discretion to Parole Cuttler before he Serves
the Minimum Term in Prison

¶19 The Utah Board of Pardons generally retains discretion to
determine the actual number of years of imprisonment a
defendant serves, which may be less than the minimum term of
the sentence. See Padilla v. Utah Board of Pardons & Parole, 947
P.2d 664, 669 (Utah 1997). Subject to certain exceptions, the
Board may pardon or parole an offender convicted of rape of a

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child “before the minimum term has been served.” See Utah
Code Ann. § 77-27-9(1)(b) (LexisNexis 2017). The Board is given
this broad authority, “[w]ith the exception of certain minimum
mandatory sentences where the Board is specifically prohibited
from paroling an offender before service of the minimum term of
years.” Labrum v. Utah State Board of Pardons, 870 P.2d 902, 907
(Utah 1993). This is not such a sentence.

¶20 The Utah Code of Criminal Procedure provides that a
defendant sentenced to prison

prior to April 29, 1996, for a first degree felony
involving . . . rape of a child, a violation of Section
76-5-402.1 . . . or a prior offense as described in
Section 76-3-407, may not be eligible for release on
parole by the Board of Pardons and Parole until the
offender has fully completed serving the minimum
mandatory sentence imposed by the court.

Utah Code Ann. § 77-27-9(2)(a). Cuttler argues that this
exception would apply in his case. The Board could not release
him in less than 25 years, Cuttler asserts, because (1) he was
sentenced in New York before 1996, for (2) a prior sexual offense.
We do not read this provision so expansively. By its plain
language, the statute restricts the Board’s authority to release a
defendant before the minimum term is served on a sentence
imposed prior to 1996. Even assuming that Cuttler’s New York
conviction and sentence applies under this statute, which we do
not decide, Cuttler does not contend that he is still serving that
sentence, that it is a minimum mandatory sentence, or that the
Board has authority to parole him on the New York sentence.
Absent application of this exception, the Board generally retains
discretion to determine the actual time served for the applicable
sentence in this case, even if that amount is less than the
statutory minimum term. Because the Board is not specifically
prohibited from considering an early release, the sentence

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applicable to Cuttler pursuant to his guilty plea is not strictly a
minimum mandatory sentence. See Labrum, 870 P.2d at 907; see
also State v. Gray, 2016 UT App 87, ¶ 43, 372 P.3d 715.

¶21 In allowing Cuttler to withdraw his guilty plea, the
district court erroneously concluded that the sentence applicable
in this case was a minimum mandatory sentence. Relatedly, the
court erred in determining that Cuttler’s guilty plea could not
have been knowingly made because Cuttler did not understand
that this was a minimum mandatory sentence. It was not. The
sentence applicable to Cuttler’s guilty plea is subject to the
Board’s discretion to consider early release before Cuttler has
served the minimum term. Accordingly, to knowingly plead
guilty in this case, Cuttler was not required to first hear the
clearly isolated phrase ‘minimum mandatory’ in relation to his
sentence.

CONCLUSION

¶22 The district court found, and our review of the record
confirms, that Cuttler was properly informed of the direct
consequences of pleading guilty. The court, Plea Counsel, and
the written plea agreement accurately communicated, multiple
times, that pleading guilty would subject Cuttler to mandatory
imprisonment for 25 years to life. Cuttler confirmed that he
understood this sentence. With regard to explaining the
applicable sentence, no more was required in this case.
Consequently, Cuttler’s guilty plea was knowingly and
voluntarily entered.

¶23 That Cuttler did not understand the district court’s lack of
discretion to reduce the minimum term does not render his
guilty plea unknowing. Further, Cuttler’s guilty plea remains
effective even though he was not told that the Board lacked
discretion to parole him early. Indeed, this explanation would

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have been simply incorrect. The Board retains the discretion to
parole Cuttler before he has served the minimum term of his
sentence, and therefore the sentence he understood would be
imposed is not a minimum mandatory sentence. In granting
Cuttler’s motion to withdraw his guilty plea, the district court
made mistakes of law and therefore exceeded its discretion. We
reverse.

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