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State v. Gutierrez4/3/2003
(For Official Publication)
Gutierrez appeals the denial of his motion to dismiss enhancement of DUI charges. We affirm.
BACKGROUND
Between 1994 and 2000, Gutierrez pleaded guilty to four alcohol-related driving offenses. In 2001, Gutierrez was charged with one count of driving under the influence of alcohol and/or drugs with prior convictions, a third degree felony, in violation of Utah Code Ann. § 41-6-44 (Supp. 2001). This count was enhanced from a class B misdemeanor to a third degree felony based on Gutierrez's four prior alcohol-related driving offenses. Gutierrez filed a motion to dismiss the enhancement of the DUI charge, claiming that he was denied the assistance of counsel in entering his 1999 guilty plea and that the plea was involuntary. The trial court determined that Gutierrez's crime was subject to enhancement regardless of the 1999 plea because he had been convicted of three other alcohol-related driving offenses within the past ten years.
Gutierrez renewed his motion claiming error in three of the four previous guilty pleas. The trial court again denied Gutierrez's motion, ruling that at least two of the three pleas were valid. Gutierrez now appeals.
ISSUE AND STANDARD OF REVIEW
To enhance a DUI conviction from a class B misdemeanor to a third degree felony, a court must find that the defendant has been previously convicted of driving under the influence of alcohol or drugs two or more times within ten years of the current conviction. See Utah Code Ann. § 41-6-44(2), (6) (Supp. 2001). We review conclusions of law for correctness and give "no particular deference to the trial court's decision." James v. Galetka, 965 P.2d 567, 570 (Utah Ct. App. 1998).
ANALYSIS
Gutierrez challenges the validity of his 1994 and 1999 convictions. He argues these pleas were not voluntary and therefore cannot be used for enhancement purposes.
I. 1994 Plea
Gutierrez asserts that his 1994 plea was not voluntary because the trial court did not conduct an adequate colloquy, as required by rule 11 of the Utah Rules of Criminal Procedure, to determine whether he was entering the plea voluntarily. Generally, a defendant may withdraw a guilty plea unless a court strictly complies with the requirements of rule 11. See State v. Gibbons, 740 P.2d 1309, 1313 (Utah 1987); State v. Ostler, 2000 UT App 28, , 996 P.2d 1065 (stating "trial court must strictly adhere to Rule 11(e)").
Although a court cannot use "an involuntary guilty plea . . . to enhance or support a subsequent conviction," State v. Branch, 743 P.2d 1187, 1192 (Utah 1987), on collateral attacks strict compliance with rule 11 is not necessary. See State v. Triptow, 770 P.2d 146, 149 (Utah 1989). The plea will be upheld if it was entered voluntarily. See id. Moreover, once the State has proven a prior conviction, a presumption of regularity arises, and the burden shifts to the defendant to produce "some evidence" of involuntariness. Id. Upon a showing of some evidence of involuntariness, the burden shifts back to the State to prove voluntariness by a preponderance of the evidence. See id.
On a collateral attack, a plea entered with the benefit of counsel is "presumed to have been voluntary" absent evidence demonstrating lack of voluntariness. Branch, 743 P.2d at 1192. Gutierrez produced no evidence demonstrating involuntariness. Accordingly, we conclude the 1994 plea was voluntary. See State v. Pooler, 2002 UT App 299, , 56 P.3d 979 (affirming trial court's denial of motion to strike prior convictions where State properly introduced evidence of defendant's prior DUI convictions and def
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