State v. Harvey

2015 UT App 92
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
RICHIE CHARLES HARVEY,
Defendant and Appellant.

Memorandum Decision
No. 20130466-CA
Filed April 16, 2015

Fourth District Court, American Fork Department
The Honorable Christine S. Johnson
No. 101100836

Jennifer Gowans Vandenberg, Attorney
for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN
concurred.

ROTH, Judge:

¶1 Defendant Richie Charles Harvey appeals from the
district court’s denial of his motion to withdraw his plea of no
contest to aggravated assault, a third degree felony. Harvey first
argues that the district court abused its discretion in determining
that his plea was made knowingly and voluntarily. Second, he
challenges the court’s denial of his motion on the grounds of
plain error and ineffective assistance of counsel. We affirm.
State v. Harvey

I. Harvey’s Plea Was Knowing and Voluntary.

¶2 Harvey contends that his misunderstanding about his
own criminal history renders his plea unknowing and
involuntary. This case began when Harvey allegedly sexually
assaulted a woman in 2010 and was subsequently charged with
forcible sexual abuse, a second degree felony, and unlawful
detention, a class B misdemeanor. After negotiations between
the State and Harvey’s counsel, the State agreed to drop the
unlawful detention charge and convert the forcible sexual abuse
charge to third degree aggravated assault if Harvey would plead
no contest. Prior to the entry of Harvey’s plea, defense counsel
showed Harvey the matrix that Adult Probation and Parole
(AP&P) employs as part of its process of developing
recommendations to assist district courts in determining
appropriate sentences for offenders. Counsel emphasized to
Harvey that it was very important for him to tell her about ‚any
conviction anywhere,‛ including convictions outside of Utah, so
that she could give him the most accurate estimate possible of
‚what was likely to happen at sentencing‛ if he accepted the
plea offer. Harvey identified a number of prior misdemeanor
convictions but told counsel he had never been convicted of a
felony. Based on this information, counsel advised Harvey that it
was likely he ‚would do some jail time‛ but that a prison
sentence was unlikely. However, she also told Harvey that there
was a potential for a maximum sentence of zero to five years in
prison and that she could make ‚no guarantees‛ about what
Harvey’s actual sentence would be.

¶3 Harvey accepted the State’s offer and entered a no-contest
plea to the third degree felony. Just before entering his plea, he
signed a plea affidavit informing him, among other things, of the
maximum sentence for the charge. The district court also
conducted a plea colloquy and determined that Harvey had
entered the plea knowingly and voluntarily. AP&P prepared a
presentence investigation report (PSI) in anticipation of the
sentencing hearing. As part of the PSI, AP&P calculated a

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State v. Harvey

criminal history assessment score for Harvey, which it then
incorporated into the Utah Sentencing Commission’s general
matrix (the Sentencing Matrix). The Sentencing Matrix
‚compare*s+ a defendant’s ‘criminal history assessment’ score
with the degree of the offense of which he ha*s+ been convicted.‛
State v. Egbert, 748 P.2d 558, 561–62 (Utah 1987). The Sentencing
Matrix ‚creates a starting point‛ for sentencing judges by
‚reflect*ing+ a recommendation for a typical case,‛ but judges are
not bound by the recommendations and are to take both
‚aggravating and mitigating circumstances‛ into account, along
with other pertinent considerations, when making sentencing
decisions. See Utah Sentencing Commission, 2014 Adult
Sentencing and Release Guidelines 1, available at
http://www.sentencing.utah.gov. The Sentencing Matrix itself
includes the following statement at the top: ‚These are
guidelines only. They do not create any right or expectation on
behalf of the offender.‛ Harvey received a criminal history
assessment score of nine points in the PSI, which placed him in
criminal history category III. When viewed in conjunction with
the third degree felony to which Harvey had pleaded no contest,
Harvey’s category III score produced a recommendation of
‚[i]ntermediate [s]anctions‛ on the Sentencing Matrix—i.e., jail
time and probation rather than imprisonment. AP&P
recommended, however, that the district court ‚make an[]
upward departure from the sentencing guideline and sentence
*Harvey+ to prison.‛ AP&P based its prison recommendation on
Harvey’s extensive arrest record and the violent nature of his
crimes, his continued blaming of the victim in this case, his
minimization of his prior criminal history, and the agency’s
concerns for public safety.

¶4 At sentencing, Harvey’s counsel requested a continuance
so AP&P could correct errors counsel identified in the PSI. The
motion was granted, and AP&P prepared an amended report.
The corrections to the amended report reduced Harvey’s
criminal history score from nine points to eight, but the
reduction did not move him into a different category on the

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criminal history scale and, accordingly, did not change the
recommendation indicated by the Sentencing Matrix. And just as
it had in the first PSI, AP&P recommended that the district court
‚make an[] upward departure from the sentencing guideline and
sentence *Harvey+ to prison‛ because of the various aggravating
circumstances it had previously articulated.

¶5 Harvey obtained new counsel and filed a motion to
withdraw his plea, contending that his plea was not knowing
and voluntary because ‚he was under the impression that he
would receive probation for his sentence‛ and he had been told
by his prior counsel he would not go to prison. He filed a
separate motion requesting that AP&P further review his
criminal history and again amend the PSI. He argued, among
other things, that one of the points allocated to him on the
Sentencing Matrix was due to an out-of-state felony conviction
he was ‚adamant‛ never occurred because he had ‚never spent a
night in prison in any state, nor has he ever been put on parole.‛
If the felony were removed, Harvey’s score would be reduced to
seven points, placing him in category II with a recommendation
of ‚*r+egular [p]robation‛ on the Sentencing Matrix. The district
court denied Harvey’s motion to withdraw his plea, stating,

It is clear from the record that Mr. Harvey was
advised of the potential plea, the potential sentence.
I told him myself on the record and he submitted a
written statement in advance of pleading guilty that
also indicates that he was advised of the potential
sentence. So the idea that now he can suggest that if
he had known there was any possibility of prison,
he would not have entered his no-contest plea to me
seems rather disingenuous.

The district court, however, granted Harvey’s request for further
clarification of the PSI.

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State v. Harvey

¶6 Over the next year and a half, Harvey failed to appear for
scheduled hearings, including a subsequent sentencing hearing,
and warrants were issued for his arrest. In the meantime, AP&P
produced a second amended PSI confirming, based on
additional research, that Harvey did indeed have a felony
conviction in Delaware. Harvey was eventually arrested for
another assault and brought before the district court for
sentencing. He continued to assert that the Delaware conviction
was not a felony and asked the district court to sentence him to
probation with credit for jail time already served. The district
court, however, found that Harvey was not a good candidate for
probation given the ‚horrendous‛ nature of the crime he had
committed as well as his prolonged failure to appear for
sentencing and his ongoing history of violent crimes. Instead, the
court sentenced him to zero to five years in prison as AP&P and
the State had recommended.1

¶7 ‚A plea of guilty or no contest may be withdrawn only
upon leave of the court and a showing that it was not knowingly
and voluntarily made.‛ Utah Code Ann. § 77-13-6(2)(a)
(LexisNexis 2012) (the Plea Withdrawal Statute). A plea is

1. The court stated,
This was . . . reduced to a third-degree
felony to a level of offense where I might have been
willing to consider probation, but based upon
[your] conduct thereafter, I just don’t believe that
you’re a candidate for probation, Mr. Harvey.
You’ve been a fugitive for a year and a half which
tells me you are not supervise-able. I can’t trust
you on probation if I can’t trust you to even show
up to court when you’re supposed to be here.
Therefore, I will adopt the recommendation
of AP&P and impose zero to five in the State prison
to commence forthwith.

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knowing and voluntary ‚only if the defendant is ‘fully aware of
the direct consequences’ of his plea.‛ State v. Trotter, 2014 UT 17,
¶ 9, 330 P.3d 1267 (quoting Brady v. United States, 397 U.S. 742,
755 (1970)). ‚A direct consequence 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. (citation and internal quotation marks omitted). Both
defense counsel and the district court have a responsibility to
‚ensure a defendant is aware of the direct consequences of his or
her plea.‛ Id. Harvey argues that ‚he did not understand his
criminal history and thus how it would impact the [Sentencing]
[M]atrix.‛ He contends that, as a result, his plea was not
knowing and voluntary because he was not fully aware of its
consequences. We conclude, however, that Harvey was
appropriately made aware of the direct consequences of his plea.

¶8 ‚We review a trial court’s denial of a motion to withdraw
a guilty plea under an abuse of discretion standard,
incorporating the clearly erroneous standard for the trial court’s
findings of fact made in conjunction with that decision.‛ State v.
Lehi, 2003 UT App 212, ¶ 7, 73 P.3d 985 (citation and internal
quotation marks omitted); see also State v. Knowlden, 2013 UT
App 63, ¶¶ 1–2, 298 P.3d 691 (per curiam) (applying the same
standard to a motion to withdraw a no-contest plea). We
conclude that the district court did not abuse its discretion in
refusing Harvey’s request to withdraw his plea. There is ample
record support for the district court’s findings that both counsel
and the district court made efforts to ensure that Harvey was
‚fully aware of the direct consequences of his plea.‛ See Trotter,
2014 UT 17, ¶ 9 (citation and internal quotation marks omitted).
While counsel predicted that Harvey’s plea would likely result
in a jail sentence, she explained to Harvey that a prison sentence
was a possible consequence and that there were ‚no guarantees‛
when it came to sentencing. The district court also conducted a
plea colloquy before accepting Harvey’s plea in which it
specifically asked Harvey whether he was aware that prison was
a possibility, to which he answered, ‚Yes, your Honor.‛

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Additionally, Harvey signed a plea affidavit that clearly
identified the maximum sentence for the crime to which he was
pleading as zero-to-five years in prison. Given the record before
us, we determine that the district court did not err in
determining that Harvey’s plea was entered knowingly and
voluntarily because he was aware of the potential consequences
of his plea.

¶9 Harvey argues, however, that accurate advice about a
crime’s potential maximum sentence is not sufficient to render a
plea knowing and voluntary. He contends that his genuine belief
he had never committed a felony is sufficient to show he ‚lacked
a full understanding of the direct consequences of his plea‛ at
the time it was entered and asserts that ‚had he understood his
offender score would include a prior felony conviction, it is
likely that he would not have pled [no contest].‛ We note first
that AP&P’s recommendation of prison was not a result of
Harvey’s offender score on the Sentencing Matrix, as his score,
with or without the felony, would not have produced a
recommendation on the matrix for prison. Rather, it was AP&P’s
concern over Harvey’s continued blaming of the victim, his
violent history, and his prolific arrest record that motivated its
recommendation of a prison sentence. And the judge based her
sentencing decision on similar factors as well as Harvey’s
conduct during the course of the proceedings. Thus, the
Delaware felony conviction appears to have had relatively little
impact on Harvey’s sentence and therefore was not the kind of
information that falls within the scope of a ‚direct consequence‛
of his plea, i.e., something that would have ‚a definite,
immediate and largely automatic effect on the range of the
defendant’s punishment.‛ See id. (citation and internal quotation
marks omitted).

¶10 More importantly, however, Harvey has failed to
convince us that a defendant’s misunderstanding of or
disagreement as to his own criminal history is sufficient to
render his plea involuntary when he has been correctly informed

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State v. Harvey

of its potential consequences. Harvey cites State v. Robinson, 263
P.3d 1233 (Wash. 2011) (en banc), and People v. Chippewa, 751
P.2d 607 (Colo. 1988) (en banc), as support for his contention that
a defendant’s plea is not knowing and voluntary, even when the
defendant is aware of the potential maximum sentence, if it is
based on a mistaken belief held by defendant about the potential
for a sentence less than the maximum. We conclude that these
cases are distinguishable from the circumstances here.

¶11 In Robinson, when the defendant pleaded guilty, he was
not made aware of changes to Washington law that allowed a
defendant’s juvenile criminal record to be included in the
calculation of his criminal history score when sentenced for a
crime he committed as an adult. 263 P.3d at 1234. The Robinson
court determined the defendant’s mistaken belief that his
juvenile record would not be considered was a ‚legal mistake,‛
not a factual one, because his misunderstanding turned on his
mistaken views of the applicable law and not on any
misunderstanding of the facts of his criminal history. Id. at 1236–
38 (citation and internal quotation marks omitted). However, the
court reiterated that defendants ‚contractually assume*+ the risk
that additional criminal history *will+ be found.‛ Id. at 1237.
Here, Harvey’s misunderstanding was a factual rather than a
legal one, as he had been correctly advised of the potential legal
consequences of his plea and it was his own misunderstanding
of his criminal history that led to his belief about how he would
be sentenced. Neither does Chippewa support Harvey’s position,
as the court there did not reach the question of whether the
defendant’s plea was entered knowingly and voluntarily, but
instead considered only whether the defendant had provided a
‚fair and just reason‛ for withdrawing his plea—a standard that
no longer applies in Utah. 751 P.2d at 607, 610–11; see also State v.
Ruiz, 2012 UT 29, ¶¶ 29–30, 282 P.3d 998 (explaining that under a
former version of Utah’s Plea Withdrawal Statute, a defendant
had to show ‚good cause‛ by demonstrating a ‚fair and just
reason‛ for granting a withdrawal, but that under the amended
version, a defendant must show ‚the plea was not knowingly

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and voluntarily entered‛ (citation and internal quotation marks
omitted)).

¶12 We therefore conclude that Harvey’s own
misunderstanding of his criminal history did not render his plea
involuntary and unknowing because he was informed of the
potential sentencing consequences of his plea—whatever his
criminal history might reveal. In other words, Harvey was
advised by his counsel, his plea affidavit, and the judge that the
maximum punishment he could receive (other than a fine) was a
sentence of zero-to-five years in prison. Harvey has not
persuaded us that Utah law requires more. See, e.g., State v.
Candland, 2013 UT 55, ¶ 13, 309 P.3d 230 (holding that a
defendant must have knowledge ‚of the likely consequences of
entering the guilty plea‛ in order for a plea to be voluntary and
knowing); State v. Alexander, 2012 UT 27, ¶ 23, 279 P.3d 371 (‚To
show that a plea was not knowing and voluntary, a defendant
must show either that he did not in fact understand the nature of
the constitutional protections that he was waiving by pleading
guilty, or that he had such an incomplete understanding of the
charge that his plea cannot stand as an intelligent admission of
guilt.‛ (citation and internal quotation marks omitted)).2

2. It is worth noting that many federal courts have also
concluded that a defendant’s inaccurate sentencing expectations
do not render a plea constitutionally defective. See, e.g., United
States v. Gunter, 620 F.3d 642, 647 (6th Cir. 2010) (holding that an
inaccurate sentencing estimate did not render a plea unknowing,
unintelligent, or involuntary because the defendant was
informed of the statutory maximum); United States v. Bowlin, 534
F.3d 654, 660 (7th Cir. 2008) (holding an attorney’s mistaken
prediction about a possible sentence does not render a
defendant’s plea unknowing and involuntary); United States v.
Pease, 240 F.3d 938, 940–42 (11th Cir. 2001) (per curiam) (holding
that a defense attorney’s failure to uncover a defendant’s prior
(continued...)

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Accordingly, we conclude the district court did not abuse its
discretion in denying Harvey’s motion to withdraw his plea.

II. Harvey’s Claims of Plain Error and Ineffective Assistance of
Counsel Also Fail.

¶13 Harvey next contends that the district court erred when it
failed to allow him to withdraw his plea on the basis of his
‚ongoing hostile relationship with his attorney‛ and his own
‚marginal competency.‛ Harvey did not raise these claims in the
district court, and therefore they are not preserved. Accordingly,
he raises them on appeal claiming plain error and ineffective
assistance of counsel. See State v. Williams, 2013 UT App 101, ¶ 2,
300 P.3d 788 (observing that claims of plain error and ineffective
assistance of counsel are exceptions to the preservation rule).
Plain error requires a defendant to show that ‚(i) an error exists;
(ii) the error should have been obvious to the trial court; and (iii)
the error is harmful.‛ State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179
(citation and internal quotation marks omitted). To show that
counsel was constitutionally ineffective, a defendant must show
‚(1) that counsel’s performance was objectively deficient, and (2)

(<continued)
felony convictions and the attorney’s inaccurate sentencing
prediction did not render the defendant’s plea unknowing and
involuntary because the defendant ‚knew at the time he pleaded
guilty [what] his sentence might be‛); United States v. Michlin, 34
F.3d 896, 899 (9th Cir. 1994) (‚*A+n erroneous prediction by a
defense attorney concerning sentencing does not entitle a
defendant to challenge his guilty plea.‛ (citation and internal
quotation marks omitted)); United States v. Jones, 905 F.2d 867,
868 (5th Cir. 1990) (‚As long as the [defendant] understood the
length of time he might possibly receive, he was fully aware of
his plea’s consequences.‛ (alteration in original) (citation and
internal quotation marks omitted)).

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a reasonable probability exists that but for the deficient conduct
defendant would have obtained a more favorable outcome at
trial.‛ State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. We conclude
that Harvey has failed to meet his burden under either standard.

¶14 During the course of proceedings in the district court,
Harvey sent several letters to the judge complaining about his
counsel’s performance and requesting that new counsel be
appointed. He alleged that counsel ‚would not investigate
exculpatory evidence‛; ‚refused to communicate with him‛;
‚was hostile‛; ‚refused to provide him with discovery and other
materials‛; and ‚refused to investigate a defense of voluntary
intoxication.‛ The court addressed Harvey’s concerns at the
preliminary hearing and determined that trial counsel was
competent and that Harvey was adequately represented.

¶15 Harvey claims that the district court should have granted
his motion to withdraw his plea on the basis of his hostile
relationship with his defense counsel. He also argues that the
attorney who replaced his original counsel was ineffective for
failing to raise his hostile relationship with his original counsel
as a basis for withdrawing his plea. But a hostile relationship
with one’s attorney is not necessarily a proper basis on which a
district court can grant a motion to withdraw a plea. The Plea
Withdrawal Statute clearly states, ‚A plea of guilty or no contest
may be withdrawn only upon . . . a showing that it was not
knowingly and voluntarily made.‛ Utah Code Ann. § 77-13-
6(2)(a) (LexisNexis 2012) (emphasis added). Thus, the hostile
relationship between Harvey and his counsel would be a
sufficient basis for withdrawal of his plea only if that
relationship rendered his plea unknowing and involuntary.
Here, the district court determined at the preliminary hearing
that Harvey was adequately represented by competent counsel,
a finding that Harvey has not challenged on appeal. And while
the record demonstrates Harvey’s frustration with his counsel
throughout the proceedings, nothing suggests to us that the
relationship interfered with counsel’s fulfillment of her

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obligation to inform Harvey of the consequences of his plea or
with Harvey’s understanding of those consequences. As a result,
we are not persuaded that it should have been obvious to the
district court at any point in the proceedings that Harvey’s
relationship with his counsel required that he be allowed to
withdraw his plea. For the same reason, Harvey cannot show
that replacement counsel was ineffective for failing to make such
a motion. Accordingly, Harvey’s claims of plain error and
ineffective assistance of counsel related to his relationship with
counsel fail.

¶16 Harvey’s competency was also addressed in the district
court. The State requested a competency evaluation based on
Harvey’s ‚erratic and inappropriate behavior in the courtroom.‛
The district court granted the motion. A psychiatrist concluded
that Harvey suffered from a ‚delusional disorder of the
persecutory type,‛ as evidenced by Harvey’s belief that he was
being pursued by FBI agents and police officers after
purportedly filing a lawsuit against law enforcement many years
prior. Harvey also claimed that the woman he had assaulted in
this case was an FBI informant hired to fabricate allegations
against him. The psychiatrist determined that Harvey’s
delusions ‚severely limited‛ his ability to participate in his own
defense. A second psychiatrist, however, determined that while
Harvey ‚shows character traits suggestive of a personality
disorder,‛ Harvey did not suffer from a mental illness and was
competent to assist counsel in his defense. Harvey was then
examined by a third psychiatrist who also concluded that
Harvey ‚does not meet the diagnostic criteria for a mental
disorder‛ and was competent to stand trial. The district court
determined that Harvey was legally competent, and the
proceedings moved forward. Harvey argues that the district
court committed plain error in failing to grant his motion to
withdraw his plea because of Harvey’s ‚marginal competency‛
and that his counsel provided ineffective assistance in failing to
move to withdraw his plea on the same ground.

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¶17 ‚The same standard applies to both a determination of
competency to plead guilty and a determination of competency
to stand trial.‛ State v. Arguelles, 2003 UT 1, ¶ 50 n.11, 63 P.3d
731. The district court’s determination that Harvey was
competent to stand trial was therefore also a determination that
Harvey was competent to plead no contest. See id. Harvey argues
that a finding of incompetency by one of the psychiatrists was
sufficient reason for the district court to grant his motion to
withdraw his plea. But Harvey has not challenged the district
court’s ultimate finding that he was competent to stand trial
based on the court’s consideration of the opinions of all three
psychiatrists. In light of the district court’s unchallenged and
supported determination that Harvey was competent to stand
trial (and therefore competent to plead), Harvey cannot argue
that the court committed obvious error in failing to sua sponte
permit him to withdraw his plea on the basis of his ‚marginal
competence.‛ Nor can he claim that counsel was ineffective for
failing to argue Harvey’s marginal competency as a reason for
withdrawing the plea. Harvey’s claims related to his competency
therefore fail.

¶18 We affirm.

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