Nicholls v. State

1 Nicholls admitted his guilt during the plea hearing held
on November 10, 2003.
2009 UT 12
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Craig Duncan Nicholls, No. 20080022
Petitioner,
v.
F I L E D
State of Utah,
Respondent. February 13, 2009
---
First District, Logan Dep’t
The Honorable Clint S. Judkins
No. 070100741
Attorneys: Craig Duncan Nicholls, Salt Lake City, petitioner pro
se
Mark L. Shurtleff, Att’y Gen., Kris C. Leonard, Brett
J. Delporto, Asst. Att’ys Gen., Salt Lake City, for
respondent
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 Petitioner, Craig Nicholls, claims that the district
court erred in dismissing his Post-Conviction Remedies Act
(“PCRA”) petition. He presents two arguments: (1) due to mental
illness, his plea was not knowing and voluntary, and (2) he
received ineffective assistance of counsel. We affirm the
district court’s dismissal.
BACKGROUND
¶2 After consulting with his girlfriend, Tamara Rhinehart,
Nicholls agreed to kill Rhinehart’s ex-husband, Michael John
Boudrero.1 In July 2003, Nicholls called Boudrero and asked him
to come to a construction site to help with a plumbing job. At

No. 20080022 2
the same time, Rhinehart was planning to attend a movie with her
children to provide an alibi for Nicholls, who planned to show up
late for the movie after he killed Boudrero.
¶3 Between 8 and 9 p.m., Boudrero arrived at the
construction site, and Nicholls led him to the basement.
Nicholls then shot Boudrero in the back and chest, dragged him
into a storage room, stole property from him, locked the body in
the storage room, and escaped in Boudrero’s car.
¶4 Investigators quickly focused on Nicholls and Rhinehart
as suspects. Nicholls used a prepaid phone card to call Boudrero
to set up the meeting; the phone card was traced to Nicholls
through video surveillance showing him purchasing the card at a
Wal-Mart in Brigham City. Investigators also received tips from
confidential informants who said that Rhinehart had told them
about a plan that “was going to happen soon,” by which she meant
her ex-husband “was going to be gone.” Rhinehart also told an
informant that her boyfriend was going to kill Boudrero.
¶5 Nicholls was charged with one count of aggravated
homicide, a capital felony, and one count of purchasing,
transferring, possessing, or using a firearm by a restricted
person, a third degree felony. The State initially sought the
death penalty.
¶6 Nicholls agreed to plead guilty to one count of
aggravated murder in exchange for dismissal of the second charge
and a recommendation by the State that he be sentenced to life in
prison without the possibility of parole. Nicholls engaged in a
colloquy with the court, and the court accepted his plea.
Nicholls waived the time for sentencing, and the court sentenced
him to life in prison without the possibility of parole.
¶7 A few weeks later, Nicholls filed a pro se motion to
withdraw his plea. In a memorandum decision, the trial court
determined that it lacked jurisdiction to consider the motion
because it was filed after imposition of the sentence, making it
untimely. Within a month, Nicholls filed a pro se notice of
appeal from the denial of the motion to withdraw his plea, but
the appeal was dismissed when a docketing statement was not
filed.
¶8 Nine months later, Nicholls filed a motion in the
district court, pursuant to Utah Rule of Criminal Procedure
22(e), to correct an illegal sentence and arrest judgment. The
district court again dismissed for lack of jurisdiction.
Nicholls filed a timely notice of appeal to this court from the
district court’s jurisdictional ruling, but we dismissed, noting

2 State v. Nicholls, 2006 UT 76, ¶¶ 6-7, 148 P.3d 990.
3 Rudolph v. Galetka, 2002 UT 7, ¶ 4, 43 P.3d 467.
4 Utah Code Ann. § 78B-9-102(1) (2008).
5 Id. § 78B-9-104(1)(a), (d).
3 No. 20080022
that because he missed the deadline for moving to withdraw his
plea, Nicholls could challenge his guilty plea only through the
PCRA.2
¶9 Nicholls then filed a petition pursuant to the PCRA.
The State filed a motion to dismiss and a supporting legal
memorandum. The post-conviction court granted the State’s motion
to dismiss and later issued findings of fact, conclusions of law,
and an order dismissing the petition. Nicholls timely appealed.
¶10 On appeal, Nicholls claims the district court erred in
dismissing his PCRA petition. He argues that (1) due to mental
illness, his plea was not knowing and voluntary, and (2) he
received ineffective assistance of counsel. We affirm the
district court’s dismissal of Nicholls’s petition.
¶11 We have jurisdiction pursuant to Utah Code section 78A-
3-102(3)(i) (2008).
STANDARD OF REVIEW
¶12 “‘We review an appeal from an order dismissing or
denying a petition for post-conviction relief for correctness
without deference to the lower court’s conclusions of law.’”3
ANALYSIS
¶13 The PCRA provides “the sole remedy for any person who
challenges a conviction or sentence for a criminal offense and
who has exhausted all other legal remedies.”4 The specifically
enumerated grounds for relief include that “the conviction was
obtained or the sentence was imposed in violation of the United
States Constitution or Utah Constitution,” and that “the
petitioner had ineffective assistance of counsel.”5
¶14 Nicholls claims that the district court erred in
dismissing his PCRA petition because his plea was not knowing and
voluntary, thus violating the United States Constitution, and

6 The State argues that we should dismiss Nicholls’s claims
because they are inadequately briefed. A pro se litigant is
“entitled to every consideration that may reasonably be
indulged.” Allen v. Friel, 2008 UT 56, ¶ 11, 194 P.3d 903
(internal quotation marks omitted). While the State points out
deficiencies in Nicholls’s brief, the brief does provide an
adequate basis for our review.
7 Utah Code Ann. § 78B-9-105(1) (2008).
No. 20080022 4
that he received ineffective assistance of counsel. We will
review each of Nicholls’s claims.6
I. NICHOLLS FAILED TO DEMONSTRATE THAT HIS PLEA WAS NOT KNOWING
AND VOLUNTARY
¶15 Nicholls first argues that prior to and during his plea
hearing, he was “suffering from a mental illness,” and as a
result, his “plea was . . . not . . . voluntary and knowing.”
Under the PCRA, “[t]he petitioner has the burden of pleading and
proving by a preponderance of the evidence the facts necessary to
entitle the petitioner to relief.”7 In an attempt to satisfy
this burden, Nicholls points to affidavits by Dr. Daniel Spencer
and Dr. William Weber.
¶16 In his affidavit dated January 11, 2006, Dr. Spencer
stated that in August 2003, he received a request from Cache
County Jail to visit Nicholls after Nicholls had been moved to
OBS3 (suicide watch). On August 22, 2003, Dr. Spencer performed
a mental health clinical assessment of Nicholls and diagnosed him
with “depressive disorder . . . clinical disorders, with adjusted
disorder with mixed anxiety and depression. . . .” He rated
Nicholls 48 on the Global Assessment of Functioning scale
(“GAF”), “suggesting a serious impairment in functioning with
serious symptoms.” However, in his notes dated August 29, 2003,
Dr. Spencer wrote that Nicholls “denied having suicidal plans or
intent,” and is “ok to move [into the general population] at this
time.”
¶17 A month later, on September 26, 2003, Dr. Spencer again
visited Nicholls. As to this visit, Dr. Spencer’s affidavit
recounts that Nicholls was “suffering from increased tension,
depressed feelings, . . . increased thoughts of death, . . . and
chest pain.” In his notes, also dated September 26, 2003, Dr.
Spencer wrote that Nicholls “is not planning on suicide,” is at
“moderate,” but not imminent risk “of self harm,” and “doesn’t
necessarily need observation at this point.”

8 Bluemel v. State, 2007 UT 90, ¶ 17, 173 P.3d 842
(citations omitted); see also Boykin v. Alabama, 395 U.S. 238,
243 n.5 (1969) superseded by statute, Fed. R. Crim. P. 11(c)
(holding that the Due Process Clause requires that waiver “be an
intentional relinquishment or abandonment of a known right or
privilege” (internal quotation marks omitted)).
9 Boykin, 395 U.S. at 243.
10 See State v. Arguelles, 2003 UT 1, ¶ 47, 63 P.3d 731 (“It
is well established that due process requires that a defendant be
mentally competent to plead guilty and to stand trial.”); see
also Utah Code Ann. § 77-15-1 (2008) (“No person who is
incompetent to proceed shall be tried for a public offense.”).
5 No. 20080022
¶18 Dr. Weber did not examine or meet with Nicholls. His
affidavit, dated January 9, 2006, merely states that he is
“familiar with the Global Assessment of Functioning scale” and
opined that a
score between 40 and 50 indicates serious
symptoms, such as suicidal ideation, and
constitutes . . . a significant compromise in
mental functioning. People who have a
functioning GAF score between 40 and 50 are
not competent to independently make major,
life-impacting decisions, especially without
appropriate stabilizing medications to assist
them in their thought and logic process.
¶19 Nicholls claims that the affidavits of Dr. Spencer and
Dr. Weber establish that his “plea was . . . not . . . voluntary
and knowing because of [his] impaired state. . . .”
¶20 A “guilty plea is not valid under the Due Process
Clause of the United States Constitution unless it is knowing and
voluntary.”8 A knowing and voluntary plea is one that has a
factual basis for the plea and ensures that the defendant
understands and waives his constitutional right against self-
incrimination, the right to a jury trial, and the right to
confront witnesses.9 A prerequisite to entering a knowing and
voluntary plea is that the defendant must be mentally competent
to enter it.10 A defendant is not mentally competent
if he is suffering from a mental disorder or
mental retardation resulting either in:

11 Utah Code Ann. § 77-15-2 (2008).
12 State v. Holland, 921 P.2d 430, 433 (Utah 1996)
(internal quotation marks omitted); see also State v. Lafferty,
2001 UT 19, ¶ 51, 20 P.3d 342 (“[C]ompetency is established when
a defendant can, but not necessarily will, assist or consult with
counsel.” (internal quotation marks omitted)).
13 See State v. Bailey, 712 P.2d 281, 285 (Utah 1985).
14 Jacobs v. State, 2001 UT 17, ¶ 13, 20 P.3d 382 (internal
quotation marks omitted).
15 Arguelles, 2003 UT 1, ¶ 50 (alteration in original)
(internal quotation marks omitted).
No. 20080022 6
(1) his inability to have a rational and
factual understanding of the proceedings
against him or of the punishment specified
for the offense charged; or
(2) his inability to consult with his counsel
and to participate in the proceedings against
him with a reasonable degree of rational
understanding.11
¶21 Thus, we have held that “[i]n determining whether a
defendant is competent to plead guilty, the trial court must
consider whether the defendant has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding and has a rational as well as factual understanding
of the proceedings against him.”12
¶22 A trial court is not, however, required to order a
competency hearing unless defense counsel, the prosecutor, or the
custodian of a defendant files a petition alleging
incompetence.13 In the absence of a petition, “[a] trial court
must hold a competency hearing when there is a substantial
question of possible doubt as to a defendant’s competency at the
time of the guilty plea.”14 “In determining whether the lower
court should have ordered a competency hearing, we consider only
those facts that were before the [trial] court when the plea was
entered.”15
¶23 The question here is whether, based on the facts that
were before the trial court when Nicholls entered his guilty
plea, there was a substantial question of doubt as to Nicholls’s
competence. Our review of the record leads us to conclude that
the answer is no.

7 No. 20080022
¶24 Before the plea hearing formally began, the judge asked
Nicholls, “are you under the influence of any drugs, medication
or alcohol?” Nicholls responded, “[n]o, sir.” The judge then
asked, “[a]re you confident that you are in complete control of
your mental faculties and are able to proceed today?” Nicholls
responded, “[y]es, sir.” George Daines, the county attorney,
then explained that he was “going to walk through the notice [of
plea bargain and Rule 11 waiver statement] for the purpose of
making sure that [Nicholls] understands each part of [it]. . . .”
¶25 The county attorney then read each charge and each
waiver of rights, paragraph by paragraph, and asked Nicholls if
he understood. In each instance, Nicholls responded, “[y]es,
sir.” The county attorney also read Nicholls’s first-person
narrative of the plot and murder of Boudrero and asked Nicholls
if the description was accurate. After each paragraph, Nicholls
responded, “[y]es, sir,” or, “[t]hat’s correct.”
¶26 The county attorney then asked Nicholls to confirm the
following statements:
Q. My decision to enter this plea was made
after full and careful thought, with the
advice of counsel and with a full
understanding of my rights and the facts and
circumstances of the case and the
consequences of the plea. I was not under
the influence of any drugs, medication or
intoxicants when the decision to enter the
plea was made and I am not now under the
influence of any drugs, medication or
intoxicants.
A. Yes, sir.
Q. I have no mental reservations concerning
this plea.
A. Yes, sir.
¶27 The court then asked, “Mr. Nicholls, . . . [d]o you
believe that you are making this plea intelligently, knowingly,
voluntarily and intentionally?” Nicholls responded, “[y]es,
sir.” Nicholls then entered his guilty plea, waived the
sentencing period, and was sentenced to life in prison without
the possibility of parole.

16 Id.
17 Id. ¶ 53.
18 Id.
No. 20080022 8
¶28 Nothing in the plea colloquy suggested that Nicholls
was incompetent. He participated in the hearing by giving
precise, appropriate answers at appropriate times. While
Nicholls argues that the affidavits submitted by Dr. Spencer and
Dr. Weber demonstrate that he was incompetent to make “major life
impacting decisions,” we review the trial court’s determination
of a defendant’s competence based on the facts that were before
the court when the plea was entered.16 The facts before the
trial court did not include Dr. Spencer’s diagnosis of Nicholls,
nor did they include Dr. Weber’s opinion regarding Nicholls’s GAF
score. In fact, the affidavits of Dr. Spencer and Dr. Weber are
dated January 2006. Nicholls’s plea hearing occurred in
November 2003. Additionally, Nicholls responded positively to
the court’s question, “[a]re you confident that you are in
complete control of your mental faculties and are able to proceed
today?” Nicholls was given numerous opportunities to alert the
court that he was not competent to enter the plea and never did
so. Nevertheless, Nicholls insists that the trial court should
have ordered, sua sponte, a competency hearing before accepting
his plea.
¶29 In Arguelles, we reviewed the record of a trial court
to determine whether the trial court should have moved, sua
sponte, for a competency hearing of the defendant. We held that
the court did not err in failing to raise the question of a
defendant’s competence because the defendant was “coherent,”
“responded to questions appropriately,” and “repeatedly affirmed”
his choice to plead guilty.17 We also noted that the defendant
indicated by words and actions that he
understood the proceedings, and he fully
participated in the hearings. . . . The
record shows that [the defendant] exhibited
no mental defects at the hearings, that he
understood the proceedings, answered the
questions posed, and participated in the
hearings. Neither standby counsel nor the
State expressed any concern over [the
defendant’s] competence to proceed, nor does
the record contain any indication that he was
not competent.18

19 The State points out that Dr. Spencer’s and Dr. Weber’s
affidavits “pertain to petitioner’s condition three months before
the [plea] Hearing and say nothing about his state of mind at the
time he entered his plea.” Additionally, Nicholls’s GAF score of
48 was interpreted by Dr. Weber, who never spoke with Nicholls.
Given that Nicholls behaved and responded appropriately during
the plea hearing, the GAF score does not establish incompetence
for purposes of our review.
20 State v. Benvenuto, 1999 UT 60, ¶ 16, 983 P.2d 556.
21 Holland, 921 P.2d at 433 (internal quotation marks
omitted).
9 No. 20080022
¶30 Similarly, Nicholls indicated by words and actions that
he understood the proceedings and the rights he was waiving, and
there is nothing in the record to suggest that Nicholls exhibited
any mental defect or inappropriate behavior that should have
alerted the court to his possible incompetence. As noted, during
the plea hearing, Nicholls answered the court’s questions
precisely and appropriately. He worked with his attorney prior
to the hearing to revise his plea statement to reflect a more
accurate depiction of the events. He agreed that the narrative
was read correctly and agreed, after each paragraph, that the
content was accurate. Thus, the trial court had no reason to
suspect, based on the facts that were before the court, that
Nicholls was not competent to enter his guilty plea.
¶31 Additionally, while the affidavits submitted by Dr.
Spencer and Dr. Weber indicate that Nicholls was likely
depressed, depression and anxiety are normal responses to the
stressful circumstances attending a criminal prosecution and
possible death sentence.19 “[A]nyone faced with the choice of
going to trial for capital murder or pleading guilty and
receiving life without the possibility of parole likely would be
depressed and upset.”20 Depression is not sufficient, however,
to establish incompetence where the definition of a competent
defendant is one who “has sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding and has a rational as well as factual understanding
of the proceedings against him.”21 Here, there was nothing at
the plea hearing to suggest that Nicholls’s depression was so
severe that he was unable to rationally consult with his lawyer
or that he failed to have a rational understanding of the
proceedings against him.
¶32 Nicholls consulted with his attorney prior to the plea
hearing and demonstrated at the plea hearing that he understood

22 State v. Litherland, 2000 UT 76, ¶ 8, 12 P.3d 92.
No. 20080022 10
the content of the hearing. When the county attorney asked: “I
hereby acknowledge and certify that I . . . understand the
following facts and rights and that I’ve had the assistance of
counsel in reviewing, explaining, and completing” the appropriate
plea forms, Nicholls responded, “[y]es sir.” (Emphasis added.)
Nicholls also worked with his attorney to draft and revise his
narrative of the crime to ensure its accuracy. When asked
whether he “discussed this case and the plea with my attorneys as
much as I wish to [and] . . . have no further questions of my
lawyer prior to the court taking my plea,” Nicholls responded,
“[y]es, sir.” When asked if he understood the proceedings
against him and each of the constitutional rights he was waiving,
in each instance, Nicholls responded, “[y]es, sir.” Nicholls’s
actions and answers demonstrate that he had the ability to
rationally consult with his lawyer and that he understood the
proceedings against him.
¶33 Therefore, despite the depression Nicholls may have
been experiencing at the time of the plea hearing, the record
does not demonstrate, and Nicholls has not proven by a
preponderance of the evidence, that his plea was not knowing and
voluntary due to mental illness.
II. NICHOLLS HAS FAILED TO DEMONSTRATE THAT HE RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL
¶34 Nicholls next argues that he is entitled to relief
under the PCRA because he received ineffective assistance of
counsel.
¶35 Nicholls claims that on the day of the plea hearing, “I
told [counsel] I wanted a trial.” In response, Nicholls claims
that his counsel “refused to consult with me or even acknowledge
that I had any input. . . .” Nicholls claims that his counsel
spent two hours making “threats, demands, and bribes” to force
Nicholls to accept the plea deal, and, eventually, Nicholls
“could no longer resist” and capitulated to the plea. Nicholls
also claims that the behavior of his counsel included “not
accepting phone calls [from Nicholls], not accepting
responsibility for clients [sic] interest[s], not investigating,
[and] not keeping [Nicholls] informed” about his case. Thus,
Nicholls claims, his counsel was ineffective.
¶36 Petitioner “bears the burden of establishing that his
trial counsel was ineffective . . . .”22 To prevail on a claim
of ineffective assistance of counsel, petitioner must satisfy the

23 466 U.S. 668 (1984).
24 Id. at 687.
25 Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993).
26 State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991).
27 Strickland, 466 U.S. at 688.
28 Id. at 687.
11 No. 20080022
two-prong test established in Strickland v. Washington.23
“First, the defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that the
deficient performance prejudiced the defense.”24 Additionally,
“proof of ineffective assistance of counsel cannot be a
speculative matter but must be a demonstrable reality.”25 Given
our limited role of review, “demonstrable reality” must be born
out by the record. Because we are not fact-finders and do not
investigate factual allegations, when a defendant raises an
ineffective assistance claim for the first time on appeal, we
will review the claim only “if the . . . record is adequate to
permit decision of the issue. . . .”26 Here, the record lacks
evidence sufficient to support Nicholls’s ineffective assistance
of counsel claim.
¶37 To satisfy the first prong of Strickland, Nicholls must
show that his “counsel’s representation fell below an objective
standard of reasonableness.”27 “This requires showing that
counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”28 Nicholls has pointed to no record evidence that
suggests his counsel’s representation was not objectively
reasonable. Nicholls was facing the death penalty. His counsel
advised him to accept a plea offer that spared him a possible
death sentence. Though Nicholls claims that his counsel put
“very, very, little time” into the case and consulted with him
only twice for a total of thirty minutes prior to the plea
hearing, such allegations are not supported by the record. Even
assuming support in the record, however, these allegations are
not sufficient to satisfy the first prong of Strickland.
¶38 We have refused to hold that counsel is ineffective
based on the amount of time counsel spent working on the case or
consulting with a client: “We decline to determine what amount
of time counsel must spend with a defendant to ensure that the
representation does not fall below an objective standard of
reasonableness. Clearly, the time period will vary with every

29 Parsons v. Barnes, 871 P.2d 516, 526 (Utah 1994).
No. 20080022 12
case.”29 Here, Nicholls’s counsel spent sufficient time on his
case to ensure an accurate narrative of the crime was read into
the record at the plea hearing and to ensure that Nicholls’s plea
spared him a possible death sentence. Given the absence of any
record evidence to the contrary, Nicholls has not shown that his
counsel’s representation fell below an objective standard of
reasonableness.
¶39 Additionally, we note that during the plea colloquy,
Nicholls was asked specifically about the quality of legal
counsel he received. The following exchange demonstrates that
Nicholls expressed satisfaction with his counsel, agreed that he
had not been threatened or bribed, and, when given the
opportunity, Nicholls did not make any assertion to the contrary.
Q. No threats or promises of any sort have
been made to me to induce me or to persuade
me to enter this plea.
A. Yes, sir.
. . . .
Q. I have discussed this case and the plea
with my attorneys as much as I wish to. I
have no further questions of my lawyer prior
to the court taking my plea. Is that
correct?
A. Yes, sir.
Q. I am satisfied with my lawyer’s counsel
and advice.
A. Yes, sir.
Q. . . . My decision to enter this plea was
made after full and careful thought, with the
advice of counsel and with a full
understanding of my rights. . . .
A. Yes, sir.
¶40 Because Nicholls has failed to satisfy the first prong
of Strickland, we need not reach the second prong--that Nicholls
was prejudiced by his counsel’s performance. We note, however,

13 No. 20080022
that Nicholls has pointed to no record evidence to show that he
would have garnered a more favorable result had he not pled
guilty. That is, there is no evidence to suggest that he was
prejudiced by his counsel’s performance.
CONCLUSION
¶41 We hold that Nicholls has failed to demonstrate that,
due to mental illness, his plea was not knowing and voluntary.
We also hold that Nicholls has failed to demonstrate that he
received ineffective assistance of counsel. Thus, we affirm the
district court’s dismissal of Nicholls’s PCRA petition.
---
¶42 Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.