State of Utah v. Troy D. Stolfus

¶1 Troy D. Stolfus entered an Alford plea to third degree felony

criminal mischief and timely moved to withdraw his plea on the

grounds that he did not enter the plea knowingly or voluntarily

due to the ineffectiveness of his trial counsel combined with his

mistaken belief that he could unconditionally withdraw his plea

State v. Stolfus

2. "By entering an Alford plea, a defendant does not admit guilt.

Rather, the defendant enters a guilty plea because he recognizes

that a prosecutor has enough evidence to obtain a guilty verdict.”

State v. Ott, 2010 UT 1, ¶ 9 n.2, 247 P.3d 344 (citing North Carolina v.

Alford, 400 U.S. 25, 28, 37 (1970)); see also United States v. Buonocore,

416 F.3d 1124, 1129 (10th Cir. 2005) (explaining that an Alford plea

is a guilty plea "accompanied by protestations of innocence” and

can be accepted by a court "when there is a strong factual basis for

the plea,” similar to a plea of nolo contendere (citing Alford, 400

U.S. at 28–29, 38)).

20130321-CA 2 2014 UT App 65

within thirty days of entering it.2 The trial court denied the motion,

and Stolfus now appeals. We affirm.

¶2 A guilty plea "may be withdrawn only upon leave of the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). "A plea

is not knowing and voluntary when the record demonstrates that

'the accused does not understand the nature of the constitutional

protections that he is waiving, or [when] he has such an incomplete

understanding of the charge that his plea cannot stand as an

intelligent admission of guilt.'” State v. Alexander, 2012 UT 27, ¶ 16,

279 P.3d 371 (alteration in original) (quoting Henderson v. Morgan,

426 U.S. 637, 645 n.13 (1976)). "We review the district court's denial

of a motion to withdraw a guilty plea for abuse of discretion . . .

[and] will disturb the findings of fact made by the district court in

resolving that motion to withdraw a guilty plea only if they are

clearly erroneous.” State v. Knowlden, 2013 UT App 63, ¶ 2, 298 P.3d

691 (per curiam) (citations and internal quotation marks omitted).

¶3 To succeed on his claim that his plea was not voluntarily or

knowingly entered in light of having received ineffective assistance

of counsel, Stolfus must demonstrate "that (1) trial counsel

rendered deficient performance [that] fell below an objective

standard of reasonable professional judgment[] and (2) counsel's

deficient performance prejudiced [him].” See State v. Person, 2006

State v. Stolfus

20130321-CA 3 2014 UT App 65

UT App 288, ¶ 13, 140 P.3d 584 (second alteration in original)

(citation and internal quotation marks omitted). The prejudice

prong of an ineffective assistance claim raised in the context of a

guilty plea requires a defendant to establish "that there is a

reasonable probability that, but for counsel's errors, he would not

have pleaded guilty and would have insisted on going to trial.” Hill

v. Lockhart, 474 U.S. 52, 58–59 (1985) (holding "that the two-part

Strickland v. Washington test applies to challenges to guilty pleas

based on ineffective assistance of counsel”); accord United States v.

Kramer, 168 F.3d 1196, 1201 (10th Cir. 1999); see also Person, 2006 UT

App 288, ¶ 13 (describing the prejudice prong in an ineffective

assistance analysis as generally requiring a defendant to "identify

specific acts or omissions that fell outside the wide range of

professional assistance and [to] illustrate that, absent those acts or

omissions, there is a reasonable probability of a more favorable

result,” which amounts to "a probability sufficient to undermine

confidence in the outcome” (citation and internal quotation marks

omitted)).

¶4 Stolfus was charged with criminal mischief for breaking a

wrought-iron handrail attached to a house. The State estimated that

Stolfus caused $1,654 of damage to the building, which rendered

the offense a third degree felony. Stolfus maintained that the

damage was no more than $500, placing the offense in the realm of

a class B misdemeanor. See Utah Code Ann. § 76-6-106(3)(b)(ii), (iv)

(LexisNexis 2012) (characterizing criminal mischief as a third

degree felony when "the actor's conduct causes or is intended to

cause pecuniary loss equal to or in excess of $1,500 but is less than

$5,000 in value” and as a class B misdemeanor when the

"pecuniary loss [is] less than $500 in value”). Stolfus contends that

his trial counsel ignored his requests to separately investigate the

State's damages estimate and ignored his assertions that he

believed the State's estimate to be grossly inflated.

¶5 For support, Stolfus cites his motion to withdraw his plea,

the hearing on that motion, and his own pro se motions before the

trial court in which he explained the basis for his belief that the

State v. Stolfus

20130321-CA 4 2014 UT App 65

damage amount was under $500. Stolfus also contends that his

conflict counsel's ability to determine "that the damage to the

railing specifically was $495” demonstrates that evidence

supporting a lower calculation was available and that his trial

counsel's representation was deficient and prejudicial for failing to

produce that evidence.

¶6 Stolfus's assertion that the damage was under $500,

however, is purely speculative, and his claim that conflict counsel

found evidence to support that assertion is misleading. Conflict

counsel did not arrive at the cited $495 damage figure after

conducting his own inquiry; rather, he obtained that figure from

the State's itemized estimate, which is otherwise undisputed. The

State explained that the $495 item on its estimate accounted for the

damage to the railing itself. The remaining $1,159 in the State's

estimate accounted for the cost of debris removal and damage to

the aluminum siding and a window awning caused by Stolfus's

removal of the railing because "the railing went . . . up into the

eaves[] and was bolted to the side of the house and a few other

things.” "Speculation that [exculpatory evidence] exists is not

sufficient to meet the prejudice component of the Strickland test.”

Parsons v. Barnes, 871 P.2d 516, 526 (Utah 1994).

¶7 Stolfus also claims that the only reason he entered his plea

was because he felt he had no choice but to "take the plea deal and

attempt to withdraw his plea and obtain private counsel,” or risk

going "to trial with an attorney [whom] he had no confidence in.”

He explained that he took the plea option in part because he was

under the mistaken impression that he would be able to

unequivocally withdraw his plea within thirty days of entering it.

He relies on evidence demonstrating his ongoing belief that the

damage amount was under $500 to prove that he did not

knowingly admit to having caused $1,654 in damage. He also

references excerpts from the plea hearing to show that the court

and State were aware that Stolfus did not agree to the $1,654

damage amount. In particular, he directs our attention to the

prosecutor's acknowledgment that Stolfus was "not agreeing” to

State v. Stolfus

20130321-CA 5 2014 UT App 65

the amount of damage that was done and that the State "agree[d]

that [he] can still try to prove what the actual amount might have

been” for purposes of restitution.

¶8 We are not persuaded that any of these assertions are

helpful to Stolfus's ineffective assistance claim or otherwise

demonstrate a lack of knowledge or voluntariness on Stolfus's part.

Indeed, Stolfus's plan to withdraw his plea after entering it

demonstrates that he understood what he was pleading to—that he

caused $1,654 of damage rather than $500. And whether Stolfus

agreed with the $1,654 damage amount is ultimately unavailing

here because he entered an Alford plea. See generally State v. Ott,

2010 UT 1, ¶ 9 n.2, 247 P.3d 344. Because a defendant "necessarily

does not admit to all elements of the charged crimes” when

entering an Alford plea, "the record must be sufficient to satisfy the

trial court and/or a reviewing court that the State's case is strong

enough to warrant acceptance of the plea when guilt is not

admitted by the defendant.” State v. Stilling, 856 P.2d 666, 674 (Utah

Ct. App. 1993). The record shows that Stolfus knew that by

entering an Alford plea he was not necessarily admitting guilt to

each element of the charged offense or agreeing with all of the facts

underlying entry of the plea. Stolfus misrepresents the

acknowledgments by the trial court and prosecutor that Stolfus

could still dispute the amount of damages—those comments were

made in the context of determining the amount of restitution that

Stolfus might be required to pay. Accordingly, we affirm the trial

court's denial of Stolfus's motion to withdraw his plea on

ineffective assistance grounds. See Parsons, 871 P.2d at 522–23, 526

(noting that a defendant must "affirmatively prove both prongs of

the Strickland test to prevail” on an ineffective assistance claim).

¶9 Stolfus also requests that we review his unpreserved

argument that he should be permitted to withdraw his plea

because the trial court's plea colloquy did not strictly comply with

rule 11 of the Utah Rules of Criminal Procedure. See Utah R. Crim.

P. 11(e) (requiring a trial court to make several specific findings

before accepting a defendant's guilty plea). We address this

State v. Stolfus

20130321-CA 6 2014 UT App 65

unpreserved argument for plain error. See State v. Dean, 2004 UT 63,

¶¶ 14–15, 95 P.3d 276. To demonstrate plain error, Stolfus must

"establish that (i) an error exists; (ii) the error should have been

obvious to the trial court; and (iii) the error is harmful, i.e., absent

the error, there is a reasonable likelihood of a more favorable

outcome for the appellant.” Id. ¶ 15 (citation and internal quotation

marks omitted). For a trial court to comply with the mandates of

rule 11(e), it need not "follow a particular script or any other

specific method of communicating the rights enumerated by rule

11,” rather, compliance "can be accomplished by multiple means

so long as no requirement of the rule is omitted and so long as the

record reflects that the requirement has been fulfilled.” See State v.

Corwell, 2005 UT 28, ¶ 12, 114 P.3d 569 (citations and internal

quotation marks omitted). Further, rule 11 permits the court to base

its findings on statements contained in a plea affidavit "after the

court has established that the defendant has read, understood, and

acknowledged the contents of the statement.” Id. (citation and

internal quotation marks omitted).

¶10 Stolfus asserts that the trial court did not "fully explain the

elements of the offense” and that it failed "to elicit a factual basis

sufficient to fulfill those elements.” He argues that had he been

"informed that he was pleading to a third degree felony with

damages that were over $1,500 then he would have better

understood the magnitude of the offense and rethought his guilty

plea.” We are not persuaded; Stolfus's handwritten summarization

in the plea agreement of the elements of the offense included his

written acknowledgment that the damage caused was between

$1,500 and $5,000. Moreover, for the reasons stated above, we

disagree that either of these alleged errors demonstrates that

Stolfus lacked the requisite knowledge or voluntariness to enter his

plea. In other words, even if the trial court committed error in the

manner it conducted its plea colloquy, we are not convinced that

any such error was harmful, i.e., had the trial court reiterated the

elements of the offense again or more directly, it would not have

"affected the outcome of the plea process,” Dean, 2004 UT 63, ¶ 22

State v. Stolfus

20130321-CA 7 2014 UT App 65

(citation and internal quotation marks omitted). We affirm the trial

court's ruling.

See above