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State v. Marshall11/14/2003
tion to support his due process argument. Rule 9-301 applies to "justice courts in those cases where the defendant may be subject to an enhanced penalty if convicted of the same offense in the future." Utah Code Jud. Admin. R9-301. In such cases, the rule states that, "upon the entry of a plea of guilty, the justice court judge shall [a]dvise the defendant, orally and in writing of the defendant's rights, the elements of the charged offense, the penalties for the charged offense, and the enhancement penalty which may be imposed in the event the defendant is convicted of the same offense in the future." Utah Code Jud. Admin. R9-301(2)-(2)(A).
**20 It is unclear, first of all, whether rule 9-301 applies outside of the context of determining the validity of a criminal defendant's guilty plea. Defendant does not state whether or not he pled guilty in connection with the 1995 conviction, but merely alleges that the offense "was prosecuted in the Justice Court as a Class B misdemeanor" and that he was not given "specific notice" of the possibility of third degree felony enhancement for subsequent DUI convictions.
**21 Additionally, Defendant provides no citations to the record to support his argument that he was not advised of the possibility of enhancement at the time of his prior convictions. [FN9] Defendant instead argues *783 that "[t]he State has not provided written evidence to prove that Defendant was so advised," but it is Defendant's burden, not the State's, to provide citations to the record to support his legal arguments on appeal. See Utah R.App. P. 24(a)(9) ("The brief of the appellant shall contain ... citations to the authorities, statutes, and parts of the record relied on.").
FN9. Even assuming Defendant did plead guilty to the charges culminating in his prior DUI convictions, it does not follow that those pleas would be invalidated for enhancement purposes based solely on a failure to comply with rule 9-301 of the Utah Code of Judicial Administration. It is well-settled that
failure to comply with [procedural rules, including] rule 11 [of the Utah Rules of Criminal Procedure] in taking a guilty plea does not in itself amount to a violation of a defendant's rights under either the Utah or the United States Constitution. To [collaterally attack a conviction], a petitioner must show more than a violation of the prophylactic provisions of [a procedural rule]; he or she must show that the guilty plea was in
fact not knowing and voluntary.
Salazar v. Warden, 852 P.2d 988, 992 (Utah 1993). For a plea to be knowing and voluntary, "an accused must be 'fully aware of the direct consequences' of a guilty plea." State v. McFadden, 884 P.2d 1303, 1304 (Utah Ct.App.1994) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)), cert. denied, 892 P.2d 13 (Utah 1995) (emphasis in original). However, " '[i]f the consequence flowing from the plea is "collateral," then the defendant need not be informed of it before entering the plea.' " Id. (quoting Santos v. Kolb, 880 F.2d 941, 944 (7th Cir.1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990)). "A collateral consequence is one that is not related to the length or nature of the sentence imposed on the basis of the plea." Id. Courts that have considered the question have held that failure to advise a criminal defendant of the possibility of enhancement should he later be convicted of another crime is a collateral, and not a direct consequence of pleading guilty, and Defendant cites no authority to suggest otherwise. See, e.g., United States v. Brownlie, 915 F.2d 527, 528 (9th Cir.1990) ("The possibility that the defendant will be convicted of another offense in the future and will receive an enhanced se
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